AJAY DALMIA AND ORS Vs. MAYANK AND ORS

JUDGEMENT

(1.) Being aggrieved and dis-satisfied with order dated 3.4.2017, passed by the learned Civil Judge, (Jr. Div.) Court No.4, Shimla, H.P., whereby defence of the petitioners-defendants (herein after referred to as the "defendants") have been closed, defendants have approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein for grant of one opportunity to file written statement after setting aside the impugned order referred herein above.

(2.) Having heard learned counsel for the parties and perused the material available on record vis-visimpugned order passed by the learned court below, this Court finds no illegality and infirmity in the impugned order because admittedly, defendants failed to file written statement well within the period prescribed under Order 8 Rule 1 CPC, however averments contained in the petition suggest that service upon defendant Nos.1 to 4 was effected on 20.12.2016 and as per provision of Order 8 Rule 1 CPC, written statement was to be filed within a period of 90 days. Petitioner has averred that due to untimely death of their cousin at Delhi, they failed to file written statement well within the stipulated period. Suit was listed before the court below on 23.3.2017, on which date, court below granted time for filing the written statement and adjourned the matter to 16.3.2017, however, fact remains that on 16.3.2017, Presiding Judge was on leave and accordingly, matter was listed for proper order on 3.4.2017. But on that day, court below instead of issuing notice to the parties passed effective order i.e. impugned order, whereby defence of defendants came to be struck of.

(3.) Mr. Vijay Arora, learned counsel representing the petitionersdefendants states that since case was adjourned to 16.3.2017, on which date presiding Judge was on leave, defendants remained under the impression that on that date, written statement would not be taken on record, rather notices would be issued to the parties intimating therein the next date of hearing. On 3.4.2017, defendants also moved an application under Sec. 148 read with Sec. 151 CPC, seeking therein enlargement of time to file written statement, however same came to be dismissed.