Shree Chandrashekhar, J. - (1.) Petitioners are aggrieved of order dated 21.04.2010 by which the trial court has declined to recall order dated 09.02.2009 debarring the petitioners from filing written statement in Title Suit No. 358 of 2007.
(2.) Title Suit No. 358 of 2007 was instituted by Ramdas Agarwal for a decree for declaration of his right, title, interest and confirmation of possession over the suit land and for a decree for declaration that sale-deed dated 16.09.2005 executed by defendant no.1 in favour of defendant no. 2 is fraudulent, collusive and void ab initio. The plaintiff is father of the defendant no. 1 and defendant no. 2 is wife of defendant no. 1. The plaintiff has pleaded that Smt. Madhu Gupta acquired about 22 kathas 5 chhataks 58 sq.ft. land comprised under Khata No. 129 of Khewat No. 4/2 through two registered sale-deeds from Sheo Bhagwan Saboo and came in possession over the suit land and name of Smt. Madhu Gupta was entered in the revenue record by virtue of order passed in Mutation Case No. 63R 27 of 1981-82. The plaintiff has claimed that the said Smt. Madhu Gupta has sold the suit lands through registered sale-deed dated 20.06.1989 to him and he has also got his name mutated in the revenue records. Subsequently, he has sold 7 kathas 6 chhataks land out of the entire suit land to defendant no. 2 by virtue of registered sale-deed dated 19.07.1996, however, he remained in possession of the remaining 14 kathas 10 chhataks land comprised under R.S. Plot No. 718 of Khata No. 129 under Khewat No. 4/2. Plea set-up by the plaintiff is that on a representation of defendant no. 1 that he would manage, supervise and look after the suit land, a power of attorney was executed by him in favour of defendant no.1 his son on 17.05.2007. Through this power of attorney the defendant no. 1 was, however, not authorized to sell the suit land and when he came to know that the defendant no. 1 is trying to misuse the said power of attorney, on 16.05.2007 he has revoked the authority conferred upon defendant no. 1 by executing a registered deed of revocation. Challenging execution of the sale-deed dated 16.09.2005 by which the defendant no.1 has conveyed suit land in favour of his wife defendant no. 2, suit was instituted. It appears that summons was issued on 15.01.2008, fixing the date for appearance of the defendants on 21.02.2008. However, the defendants appeared on 01.07.2008 and thereafter they were granted opportunities for filing written statement on as many as eight occasions still when they failed to file written statement, by an order dated 09.02.2009 they were debarred from filing written statement.
(3.) Stand taken by the defendants is that on account of illness of his wife he could not file written statement within the stipulated time. The learned counsel for the petitioners submits that keeping the object behind Order VIII Rule 1 CPC in mind, one more opportunity should have been granted to the petitioners for filing written statement which, in fact, was submitted by the defendants on 31.03.2009.;