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2008 DIGILAW 327 (DEL)

Prem Kumar Dua v. Priya Bala Mazumdar

2008-03-24

VEENA BIRBAL

body2008
Veena Birbal, J. (ORAL) 1. The grievance of the petitioner/defendant No.3 is that in the suit filed by respondent no. 1/plaintiff against him and two other defendants i.e. respondent nos. 2 and 3 herein, petitioner/defendant No.3 has not been allowed to file written statement and his defence has been struck down vide order dated 3.5.2005 passed by learned Civil Judge, Delhi. Thereafter, petitioner filed review petition which was also dismissed vide order dated 23rd November, 2005. 2. Counsel for petitioner has submitted that written statement has not been filed in the matter as some applications of petitioner/defendant No.3 including application under Order 7 Rule 11 CPC were pending. Petitioner was informed by his counsel that after disposal of those applications, Court will give him time to file written statement, as such written statement was not filed. It is submitted that under these circumstances, learned Civil Judge ought to have given an opportunity to file written statement specially considering that application of petitioner under Order 7 Rule 11 was pending disposal. 3. I have considered the submissions made and perused the record. 4. Perusal of record shows that petitioner/defendant No.3 had entered appearance in the aforesaid case in the year 1999. Thereafter, he did not file written statement. Various opportunities have been given to him to file the same. The application of petitioner under Order 7 Rule 11 CPC was dismissed on 1st November, 2004. Even thereafter he did not file written statement uptil 3rd May, 2005 when on that day, his defence was struck down due to non-filing of written statement. Learned Civil Judge also noted that there is no bona fide effort on behalf of petitioner/defendant No.3 or any reasonable explanation for non-filing of written statement. The review application has been dismissed by the Learned Civil Judge vide impugned order dated 23rd November, 2005. 5. It may be seen that present is a case where the owner of the building, i.e. respondent no. 1/plaintiff had entered into a collaboration agreement with respondent nos. 2 and 3/defendant No.2 & 3 in the year 1993 by which respondent nos. 2 and 3 have undertaken to construction of plot of land and to build the basement, ground floor and first floor as per the sanction plan in accordance with MCD bye-laws and the petitioner/defendant No.3 had purchased first floor of the said building from the builders. 2 and 3/defendant No.2 & 3 in the year 1993 by which respondent nos. 2 and 3 have undertaken to construction of plot of land and to build the basement, ground floor and first floor as per the sanction plan in accordance with MCD bye-laws and the petitioner/defendant No.3 had purchased first floor of the said building from the builders. The owner i.e. respondent No.1 is litigating since 1999. Perusal of record shows that petitioner had earlier filed CM(M) No. 1157/2006 challenging order dated 3.5.2005 by which his defence was struck out due to non-filing of written statement. In the said petition, show-cause notice was issued to respondent, returnable on 12th December, 2006 subject to petitioner depositing a sum of Rs. 7,500/- in the Court within one week from that day. It is nowhere stated in the petition or at the time of arguments as to whether petition deposited the cost or not. On 19th February, 2008, i.e. after a gap of 2 years, he had withdrawn the said petition seeking liberty to challenge the impugned order dated 23rd November, 2005 which was granted to him subject to all the defences which would be available to the other side. Thereafter, the present petition is filed challenging the impugned order. 6. The net position emerging is that petitioner/defendant No.3 had put in appearance in the suit pending before learned Civil Judge in 1999. Thereafter, he had availed various opportunities and did not file written statement i.e. for nearly six years petitioner did not file written statement. The application of petitioner/defendant under Order 7 Rule 11 of CPC was also dismissed vide order dated 01.11.2004 and even thereafter petitioner did not file written statement despite the fact that there was ample opportunity to do so till 03.05.2005. In any event, pendency of miscellaneous application is no ground for not filing written statement. The contention of petitioner in this regard has no force. It is not shown that petitioner ever took written statement to the court. 7. I find no infirmity or illegality in the impugned order which calls for interference by this Court under Article 227 of the Constitution of India. Accordingly, the petition stands dismissed.