ASHOK K MITTAL Vs. G D PATHAK

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order dated 12.5.2004 disposing of two applications - i) under order VIII rule 1 read with rule 10 and section 151 of the Code of Civil Procedure filed on behalf of the plaintiff and ii) application under section 21 read with section 151 of the Code of Civil Procedure, as also an application under section 5 & 12 of the Limitation Act filed on behalf of the defendant.. The application under order VIII rule 1 of the Code of Civil Procedure has been dismissed whereas the application under section 5 & 12 of the Limitation Act filed on behalf of the defendant has been allowed and the defendant s written statement has been taken on record. However, application of the defendant under section 21 read with section 151 of the Code of Civil Procedure has been dismissed. Aggrieved the plaintiff has filed the present petition.

(2.) I have heard Mr.V.Shekhar Advocate learned counsel for the petitioner and Mr Atul Sharma Advocate learned counsel for the respondent on the point of admission and have gone through the copies of the documents placed on the file. Briefly the facts are that the petitioner- plaintiff-tenant (hereinafter referred to as the plaintiff) is a tenant under the defendant - respondent- landlord (hereinafter referred to as the defendant). Their relations got strained whereupon the plaintiff filed a suit for perpetual injunction (bearing No.122/2003) against the defendant to prevent him from evicting the plaintiff without due process of law also one more suit (bearing No.123/2003). The plaintiff then filed a third suit for recovery of Rs.15 lacs, declaration and perpetual injunction against the defendant.

(3.) It is alleged that summons of the suit and the notice of the application for interim stay were served upon the defendant in the first week of October 2003 and as per provisions of order VIII rule 1 of the Code of Civil Procedure the defendant was required to file the written statement within 30 days of the service of summons but the same was not filed and in any case the defendant was bound to file the written statement within 90 days which ended in January 2004.