SUSHMA Vs. GAMESH MATHUR & OTHERS

JUDGEMENT

(1.) The appellant, being defendant no.3 in the suit, has assailed the order dated 12.03.2018 passed by the learned Single Judge by which an application filed by the appellant, being IA.3326/2018 under Order IX Rule 13 of the Code of Civil Procedure, has been dismissed.

(2.) The respondents no.1 to 3, being the plaintiffs in the suit, had filed a suit for specific performance seeking a decree of specific performance of an Agreement to Sell dated 24.12010. The appellant herein, was arrayed as defendant no.3 in the suit. As despite service, the written statement was not filed, the right to file the written statement was closed on 15.01.2013, which order has attained finality. The impugned order reveals that after the respondents no.1 to 3 had filed affidavits by way of evidence, the appellant herein cross-examined all the witnesses of the plaintiffs in the suit. The plaintiffs closed their evidence on 18.05.2016 and the suit was listed before the Court on 03.08.2016 and 15.11.2016 for final arguments, on which dates the counsel for the defendant no.3, the appellant herein had appeared. The suit thereafter came up for hearing on 09.08.2017. We are informed that the matter was shown regularly in the category of 'Final Hearing Matters', but was taken up for hearing on 09.08.2017 when the counsel for the appellant herein did not appear. The matter was taken up thereafter on 10.08.2017 when final arguments were heard, judgment was reserved and an ex parte judgment was pronounced on 03.01.2018.

(3.) Learned counsel appearing on behalf of the appellant submits that the appellant had acted in a diligent manner and had engaged the services of one Shri Ashok Chikra, Advocate. However, despite paying his fees, he did not prepare and file the written statement despite the same having been signed by the appellant. It is further contended that the said counsel had stopped appearing in the matter and the matter was being looked after by his associate counsels. Learned counsel submits that to meet the end of justice the appellant should have been granted an opportunity to address the arguments in the matter by the learned Single Judge.