ISMAIL KHAN Vs. BIR SINGH

JUDGEMENT

(1.) Defendant no. 1 has filed the present petition impugning the order dated 5.2.2015 (Annexure P-1) passed by the learned Court below whereby the application filed by him for permitting him to sign the written statement already filed and also to file affidavit in support of that, was declined.

(2.) Learned counsel for the petitioner submitted that in the suit for specific performance of the agreement to sell dated 11.4.2005 filed by respondent no. 1/plaintiff on 21.4.2006, the petitioner appeared on 5.11.2007. Subsequent thereto, the written statement was filed, which inadvertently was signed only by the counsel and not by the petitioner/ defendant. The error was not noticed even by the plaintiff. It was not pointed out by counsel for respondent no. 1/ plaintiff at the time of filing replication or at any stage of proceedings. The plaintiff led his entire evidence. The witnesses produced by him were even cross-examined by the petitioner/ defendant. However, no objection was raised. It is when defendant no. 1 was to start his evidence that it was noticed that the written statement already filed had not been signed by the petitioner/ defendant. The error having been noticed, the application seeking permission to sign the written statement already filed to rectify the defect was filed, which has been wrongly declined by the learned court below. While referring to judgments of Hon'ble the Supreme Court in Kailash vs Nanhku and others, 2005 2 RCR(Civ) 379, Uday Shankar Triyar vs Ram Kalewar Prasad Singh and another, 2006 1 RCR(Civ) 18, and judgments of this Court in Smt. Mukhtiar Kaur vs Smt. Ghulab Kaur, 1977 AIR(P&H) 257 and Harbhajan Singh vs Mohan Singh, 1992 102 PunLR 482, he further submitted that the error being procedural, the same can be cured at any stage as the same is not fatal.

(3.) On the other hand, learned counsel for respondent no. 1/ plaintiff submitted that though after service the petitioner/ defendant appeared on 5.11.2007 but did not file his power of attorney. The written statement was not signed by him. It was pointed out later on. As there was no power of attorney on record filed by counsel for defendant no. 1, he was directed to be proceeded ex-parte on 24.3.2014. The application for setting aside the ex-parte proceedings was filed on 26.3.2014. On 9.4.2014, it was pointed out by counsel for the plaintiff that the written statement filed by the petitioner had not been signed by him. No steps were taken to correct the error, if any. The order directing ex-parte proceedings against the petitioner was set aside on 18.5.2014. Even thereafter, the steps were not taken to file a signed written statement. The application for the purpose was filed on 21.1.2015. The same was highly belated. Due diligence was not proved. In fact the object of the petitioner was only to delay the proceedings, in which he was successful. The suit was filed by respondent no. 1/ plaintiff way back in the year 2006, which is still at the evidence stage.