KULBHUSHAN SETH Vs. SEEMA SETH

JUDGEMENT

(1.) THIS is an appeal against the order dated 7th April, 2000. The impugned judgment noted that on 19th January, 2000, the defendant was directed to file affidavit showing his total gross amount of salary in the year 1999 which was not done and at the request of the defendant/appellant two weeks' further time was given on 14th February, 2000. This order was also not complied with and on 19th March, 2000, a notice was given to the appellant to show cause as to why his defence should not be struck off. The appellant was also required to be present in person before the learned Single Judge. The defendant/appellant neither filed affidavit nor showed any cause nor remained present on 7th April, 2000. By the said order the learned Single Judge has construed this conduct to show lack of bona fide and in our view rightly so. On account of the aforesaid conduct of the appellant, the defence of the appellant was struck off and the statement of the plaintiff/respondent was recorded separately.

(2.) FROM the averments made in the plaint and the statement made by the respondent/plaintiff, the learned Single Judge concluded as follows:

(3.) THE learned Counsel for the appellant has challenged the above judgment of the ground that the learned Single Judge was duty bound inspite of striking off the defence, to look at the written statement of the appellant/defendant which contradicted the evidence recorded by the learned Single Judge. Reliance has been placed on the judgment of the Hon'ble Supreme Court in Modula India v. : AIR1989SC162 . The learned Counsel for the appellant submitted that the above judgment postulated that even if the defence is struck off, the written statement ought to be considered before passing any judgment. The relevant paragraph of the said judgment reads as follows: