NARENDER KUMAR Vs. SURESH KUMAR

JUDGEMENT

(1.) RESPONDENT No.1 is the plaintiff in civil suit instituted against four defendants praying for declaration that he is owner in possession of the suit premises on the basis of registered will dated December 20, 2009 registered in the office of Sub -Registrar, Kalka executed by Smt. Devki Rani widow of Bhag Mal in his favour. The further prayer is for declaration that mutations entered in the name of the petitioner and the proforma respondent Nos.2 to 4 are null and void. A permanent injunction is sought in the suit against the defendant/petitioner and the proforma respondents restraining alienation or creation of a charge over the suit premises on the basis of the mutation sanctioned in the name of the petitioner and the proforma respondents. The suit was instituted on October 5, 2013. Summons to the respondentsdefendants were issued for October 14, 2013. Summons were given dasti. On October 14, 2013 notice to defendant No.2 was returned unexecuted.

(2.) THE remaining defendants were not served or present. Fresh notices were issued to defendant Nos.2 to 4 for the date fixed i.e. October 31, 2013 on which date defendant Nos.2 to 4 remained unserved. Fresh summons were issued for January 13, 2014. Defendant No.1 was called upon to file written statement on the adjourned date. Contesting defendant No.1/petitioner appeared through counsel who prayed for and was granted time to file written statement. Summons on the defendants were effected on January 13, 2014 when the case was adjourned to February 28, 2014. The counsel also filed a power of attorney on behalf of the remaining defendants. On February 28, 2014 written statement was filed and adjournment was sought by the petitioner's counsel for filing written statement. However, the learned trial Court by the order dated February 28, 2014 on the day when the request was made has recorded that the case file shows that defendant No.1, petitioner appeared in the civil suit on October 14, 2013 and the period prescribed for filing written statement of 90 days already stands elapsed. On this, the trial Court proceeded to strike off the defence of the petitioner and called upon the remaining defendants to file their written statement on April 21, 2014. The trial Court by a peculiar order dated April 21, 2014 which is as peculiar as the one passed on February 28, 2014 granted one more opportunity to co -defendant No.2 to file written statement by May 26, 2014 subject to costs of Rs.500/ -. The request for adjournment had been opposed by the plaintiff against the petitioners co -defendant as the period of 90 days had already expired.

(3.) MR . Yadav submits that the contesting (petitioner) and proforma defendants were represented by the same counsel. If there was one counsel engaged then the written statements of all had to be filed by Sh.Arvind Sood, Advocate. If the written statements of some of the defendants had not yet come in then where was the dire necessity to strike off the defence of the petitioner to await written statements of the remaining defendants. If indulgence was shown to defendant No.2 to file written statement after expiration of the period of 90 days prescribed under Order 1 Rule 8 CPC then time should have been granted to the petitioner as well subject to costs.