MOHINDER SINGH Vs. SARDOOL SINGH

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution prays for quashing order dated 17.9.2004 passed by the Additional Civil Judge (Sr. Division), Gurdaspur striking off the defence of the defendant-petitioner for his failure to file the written statement despite the fact that he has been appearing before the Court through counsel since 12.4.2003.

(2.) BRIEF facts of the case are that plaintiff-respondents 1 and 5 filed Civil Suit No. 150 on 28.8.2002 against the defendant-petitioner and defendant- respondents 6 to 26 seeking a declaration to the effect that plaintiff- respondents 1 to 5 and the defendant-petitioner as well as defendant- respondents 6 and 7 are co-sharers in the suit land. After the issuance of summons and service of the same the defendant-petitioner appeared before the Court through his counsel on 12.4.2003. The case has been adjourned from time to time for effecting service on other unserved defendant-respondents. There are various interlocutory orders dated 8.11.2002, 13.1.2003, 25.2.2003, 12.4.2003, 29.4.2003, 12.6.2003, 21.10.2003, 23.10.2003, 4.2.2004, 2.4.2004, 26.5.2004 and the impugned order dated 12.8.2004. These orders show service on one or the other defendant-respondent or initiation of ex parte proceedings on the served defendant-respondents. When the defendant-petitioner failed to file the written statement within a period of 30 days from the date of service or maximum period of 90 days as provided by Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'), the learned Civil Judge by relying on Order VIII Rule 1 of the Code has struck off the defence of the defendant-petitioner.

(3.) I have thoughtfully considered the submissions made by the learned counsel and do not feel persuaded to accept the same. It is necessary to make a reference to Order VII Rule 1 of the Code which reads as under:-