MCD Vs. SACHDEVA PROMOTERS AND PROBE

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 5th May 2005 passed by the learned additional District Judge whereby an application for review of the order dated 18th October 2004 was dismissed.

(2.) VIDE order dated 18th October 2004, right to file written statement of the defendant (petitioner herein) was closed and an application made by the respondent under Order 8 Rule 10 of CPC for striking out the defence of the petitioner was allowed. In the review application, the petitioner mentioned the date of order to be reviewed as 16th October 2004 and in the prayer clause of the review application, he mentioned the date of order as 23rd November 2004 The learned trial court noticed that the petitioner has shown gross negligence even in filing the review application. As no order, either of 16th October 2004 or 23rd November 2004 was passed by the Court. The review application was also held barred by limitation since it was moved beyond the period of limitation of 30 days and no accompanying application for condonation of delay was filed. Still the court below considered the application on merits and found that there was no merit in the application.

(3.) A perusal of record would show that the learned trial court observed that the suit was filed sometime in December 2003. Notice of appearance was served upon the respondent on 17th May 2004 as per the report of the process server. On 17th August 2007, the Court specifically gave directions for filing written statement by 17th September 2004 On 17th September 2004, the defendant sought an adjournment on the ground that copy of the judgment referred in paragraphs 4 of the plaint had not been received and, therefore, he was unable to file the reply. The plaintiff also made an application under Order 8 Rule 10 cpc for closing the right of the defendant to file the written statement. However, the Court fixed the case for filing written statement on 18th October 2004 and for reply to the application on 18th October 2004 Even on 18th October 2004 written statement was not filed. The learned trial court closed the right of the defendant to file written statement.