N.C. Jain, J. - (1.) This appeal has been directed against the judgment and decree of the Subordinate Judge Ist Class, Amritsar, dated 15.1.1982 by which the suit of the plaintiffs for specific performance of an agreement of sale dated 5.5.1980 has been decreed. Defendant No. 1 Pushpa Wati Nayyar who died during the pendency of the appeal and who is survived by her sole legal heir Tilak Raj Bedi filed an appeal before this Court.
(2.) This Court need not either go into the detailed narration of facts or law as the decision of the case centres round the question whether the trial Court has acted within its jurisdiction in striking off the defence of the defendant or not.
(3.) After hearing the learned counsel for the parties, this Court is of the view that the trial Court has committed an error in striking off the defence under Sec. 35B of the Code of Civil Procedure (for short the Code'). A look at the various orders on the judicial file of the case would make it clear that the defence of the defendant was struck off by resorting to the provisions of Sec. 35B of the Code on a subsequent date of hearing and not on the date when the costs were to be paid. Reproduction of the following orders would be advantageous: "Present: Counsel for the parties. Written statement and reply of application not filed by the defendants. Requested for date. Be filed on 2.12.1991 subject to cost of Rs. 25/ -. . . . VERNACULAR TEXT OMMITED. . . Present: counsel for the parties. Written statement and reply of application not filed by the defendants. Requested for date, which is not opposed by the other party. Cost of Rs. 25/ - also not paid. Written statement be filed on 8.12.1981. . . . VERNACULAR TEXT OMMITED. . . Present: Counsel for the parties. Counsel for the deft, states the will file w/s after some time. Be called again. . . . VERNACULAR TEXT OMMITED. . . Present: Counsel for the plaintiff. Counsel for the deft, is present. No. w/s has been filed nor costs paid by deft. 1 & 2. Defence of deft. No. 1 & 2 is therefore struck off. For a reply of application of Shri G.R. Tuteja to come up on 15.12.1981. . . . VERNACULAR TEXT OMMITED. . . Present: Shri Ramesh Chaudhary proxy for counsel for the plaintiff. Counsel for the defendant. Arguments heard partly. Counsel for the plaintiff is stated to be busy in the Sessions Court. For remaining arguments, to come up on 15.1.1982. . . . VERNACULAR TEXT OMMITED. . .;