LAKHBIR SINGH Vs. ARUN KUMAR KHANNA

JUDGEMENT

(1.) THE present appeal is directed against the order dated 10.09.2013 passed by a learned Single Judge of this court in I.A No. 2822/2012 in CS(OS) No. 1030/2009. The said application had been moved by the appellant / plaintiff seeking an order directing the defence of the defendant to struck off on account of failure on the part of the defendant to deposit an amount of Rs 52 lakhs in the court in terms of the order dated 26.04.2010 as also in terms of the undertaking furnished by the defendant / respondent as recorded in the order dated 04.06.2010 and the affidavit dated 10.06.2010 to the same effect.

(2.) THE plaintiff had filed an application being I.A No. 7381/2009 under Order XXXIX Rules 1 and 2 CPC seeking an ex -parte injunction. That injunction was granted to the plaintiff by virtue of the order dated 27.05.2009. Subsequent thereto, the defendant filed an application under Order XXXIX Rule 4 CPC being IA No. 8004/2009 for vacation of the said ex -parte injunction order pertaining to the property bearing No. 3 (Ist Floor), Road No. 5, Punjabi Bagh Extension, New Delhi.

(3.) HOWEVER , the said deposit was not made within the period stipulated and the defendant / respondent moved an application seeking extension of time for depositing the said sum. That was extended by an order dated 04.06.2010 by a further four weeks. The said order also required the defendant / respondent to furnish an undertaking in the form of an affidavit that the said deposit would be made within a further period of four weeks. However, despite the undertaking being furnished on 10.06.2010, the defendant / respondent did not deposit the said sum of Rs 52 lakhs. This led the plaintiff / appellant to file an application (I.A No. 2822/2012 under Section 151 CPC) for striking off the defence of the defendant / respondent on the ground that the said sum of Rs 52 lakhs had not been deposited despite clear directions by the court and the solemn undertaking given by the defendant / respondent. This application was, however, rejected by the learned Single Judge and that is how the appellant / plaintiff is before us. We are of the view that the requirement of depositing of Rs 52 lakhs was a condition of vacating the ex -parte injunction order which had been operating in favour of the plaintiff / appellant till the order dated 26.04.2010 vacating the same was passed. The consequence of not depositing the said sum of Rs 52 lakhs would, obviously, be that the injunction which had inured to the benefit of the plaintiff would continue. It may be pointed out that in the meanwhile, the plaintiff / appellant had filed an appeal being FAO(OS) No. 552 -53/2010 which was disposed of by a Division Bench of this court on 21.04.2011. In that order also it has been noted that the amount of Rs 52 lakhs had not been paid by the defendant / respondent and that its effect would be that the stay which operated in favour of the plaintiff would continue to operate.