Himachal Pradesh High Court

CMPMO/545/2018 on 28 December 2018

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 545 of 2018 Decided on :28thDecember, 2018 ____________________________________________________ Sardar Singh ……Petitioner Versus Sali Ram

…..Respondent

Coram:

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?_____ For the petitioner : Mr. Arush Matlotia, Advocate. For the respondents : None.

Justice Vivek Singh Thakur, Judge

(Oral) This petition has been filed against impugned order dated 3.11.2018 passed by learned Civil Judge, Court No.II, Nurpur whereby application filed by the petitioner/defendant under Section 148 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’) for extension of time to file written statement has been dismissed and his prayer, seeking the permission to file written statement, is rejected and his defence has been struck off.

2. In view of nature of prayer and order proposed to be passed hereinafter, I am of the opinion that issuance of notice to the respondent/plaintiff shall amount to undue harassment to the plaintiff and therefore, no notice is ordered to be issued to the respondent.

3. It is evident from the impugned order that now the case has been listed for plaintiff evidence on 23.2.2019.

4. Perusal of order sheets, placed on record with this petition, indicates that suit was listed for first time before the trial Court on 9.5.2018 whereupon notice was issued to the defendant returnable for 16.7.2018. On service, petitioner/defendant was represented through counsel on 16.7.2018 and next date 16.8.2018 was fixed for filing written statement. However, no written statement was filed on behalf of the defendant and on 3.11.2018 an application under Section 148 CPC was filed for extension of time as the defendant had not filed written statement before expiry of 90 days.

5. The application filed by the petitioner has been placed on record as Annexure P-3 and only reason for not filing the written statement well in time is that petitioner/defendant was not well and could not approach his counsel for drafting the written statement within stipulated time. But no material to substantiate the plea taken by the petitioner/defendant has been placed on record nor kind of disease from which he was suffering has been disclosed. Therefore, I find that in the facts and circumstances, placed before the trial Court, there is no infirmity, illegality or perversity in the impugned order passed by learned Civil Judge, Court No. II, Nurpur.

6. However, in the interest of justice, one opportunity may be granted to the petitioner/defendant, subject to payment of exemplary costs to the plaintiff. Accordingly, present petition is disposed of by granting liberty to the petitioner/defendant to file the written statement on or before next date of hearing fixed before the trial Court, subject to payment of costs of Rs.10,000/- to the plaintiff on or before the said date. It is made clear that on failure to file the written statement on or before 23rd February, 2019, the petitioner/defendant shall loose his right to file written statement and thereafter learned trial Court shall proceed further in accordance with law.

7. It will also be the responsibility of petitioner/defendant to serve copy of this judgment upon the plaintiff either in person or through his counsel on or before 11th January, 2019 under proper receipt, failing which he shall not be entitled for liberty granted for filing the written statement. Petition stands disposed of in aforesaid terms.

Dasti copy on usual terms.

(Vivek Singh Thakur) Judge December 28, 2018 (ms)

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