SWATANTRA KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) A suit for perpetual injunction was filed by the Petitioners against the respondent on 20th October, 1978. The case of the petitioners was that large portion of land measuring about two thousand square yards was owned by them but had been taken possession of illegally by the respondent. According to the petitioners the respondent was also trying to encroach upon other land measuring approximately seven thousand square yards which belonged to the petitioner. Summons having been issued no written statement was filed by the defendant and repeated adjournments were sought. Ultimately, on 3rd April, 1980 the trial court ordered the striking off the defence of the respondent under Order 8 Rule 10. It was directed that the case be posted for ex parte evidence on 18th July, 1980. Before the next date of hearing an application under Order 9 read with Section 151 Civil Procedure Code was filed. It was stated in the application that on 3rd April, 1980 no counsel could attend on behalf of the respondents as there had been a strike Which had been called by the Delhi Bar Association. It was further stated that when the case was called a representative of the respondent was present in court alongwith the written statement. It was averted that the court refused to take the written statement on record as it had not been signed by the counsel and also for the reason that each page had not been signed by the respondent or their counsel. It was finally contended that sufficient cause had been shown for the non appearance of the counsel on the date fixed.

(2.) Reply was filed to the said application, it was, inter-alia, contended that the application under Order 9 Civil Procedure Code was not maintainable. It was also stated that the said application was moved more than one month after the order dated 3rd April, 1980 had been passed and, therefore, it was barred by limitation. By order dated 11th August, 1980, the trial court treated the said application as an application for review. It also entertained an oral request for condonation of delay and condoned the delay in exercise of its power under Section 5 of the Limitation Act. The Trial Court reviewed the order dated 3rd April, 1980 and allowed the written statement to be taken on record on payment of Rs. 50.00 as costs. The aforesaid order dated 11th August, 1980 is being challenged. It is contended by Shri Aggarwal that there was no proper application under Section 5 of the Limitation Act and delay could not have been condoned. It is also contended by him that the application under Order 9 was not maintainable and the court could not have converted that application to an application for review.

(3.) It is now well settled that if an application is maintainable, then merely mentioning of a wrong provision of the law would not divest the court of its jurisdiction to deal with such an application. It is not disputed by the learned counsel for the respondent that such an application for review or under Order 9 was not maintainable but she further contends that the application should be regarded as one under Section 148 GPG. In this connection strong reliance has been placed by Mrs. Bahri on a decision of this court in the case of Sada Rum v. Delhi Development Authority A.I.R. 1974 Delhi 35. It is also her contention that the present revision under Section 1 15 is not maintainable.