- (1.) In this revision petition filed under Article 227 of the Constitution of India by the plaintiff-petitioner, the prayer is for setting aside the order dated 6.8.2011 whereby the application filed by the petitioner for striking off the defence of the defendant-respondents had been dismissed and the written statement already filed by the defendants was allowed to be taken on record subject to payment of Rs.1000/- as costs.
(2.) Briefly the facts as narrated in the petition may be noticed. The plaintiff-petitioner filed a suit for possession by way of specific performance of agreement to sell dated 13.8.2008. On 30.4.2010, notice of the suit was issued to the defendants for 15.5.2010. Power of attorney on behalf of defendants No.3 to 6 was filed whereas defendants No.1 and 2 had not been served and accordingly fresh summons were issued for 7.8.2010. Defendants No.1 and 2 sought time on 7.8.2010 for filing of written statement and case was adjourned to 4.9.2010 and was again adjourned on 4.9.2010 to 13.11.2010 for filing of written statement as the defendants did not file the written statement. On 13.11.2010, written statement was filed by defendants No.1 and 2. However, an application was filed by the plaintiff under Order 8 Rule 1 of the Code of Civil Procedure (in short "the Code") for striking off the defence of the defendants for not having filed the written statement within 90 days from the date of the appearance. The trial court noted that the written statement had been filed on 13.11.2010 which was on record and the written statement was allowed to be filed subject to payment of Rs.1000/- as costs.
(3.) Learned counsel for the petitioner submitted that the defendant-respondents had not filed the written statement within 90 days of appearance and therefore, trial court had wrongly dismissed the application filed by the plaintiff-petitioner for striking off the defence of the respondents-defendants. Support was sought to be drawn from the Apex Court judgment in Mohammed Yusuf v. Faij Mohammed and others, 2009 3 SCC 513.;