JUDGMENT
R. L. Anand, J.
1. This Civil Revision is directed against the judgment dated 19.12.1994 passed by the Sub Judge 2nd Class, Ferozepur, who allowed the application under Section 148 read with Section 151, C.P.C., filed by defendant
No. 1 Paramjit Singh and allowed him to file written statement subject to payment of Rs. 300/- as costs in spite of the fact that earlier the defence of the applicant-defendant was struck down.
2. Brief facts of the case are that plaintiff Sukhdev Singh filed a suit for permanent injunction restraining the defendants from interfering with his exclusive possession over the land measuring 2 Kanals fully described in the head note of the plaint. Notice of the suit was given to the defendants, who did not file the written statement and vide order dated 26.2.1993 the learned Sub Judge struck off the defence and proceeded with the case accordingly. He recorded the evidence of the plaintiff and the case was finally decided for arguments, when the defendant moved an application under Section 148 read with Section 151, C.P.C. after the expiry of about two years, praying to the Court that the order dated 26.2.1993 be recalled and the defendants may be permitted to participate in the proceedings by filling the written statement. It was pleaded by the defendant that he had gone to Calcutta to see his parents and there he fell ill and he was advised by the doctor not to move and, therefore, he could not come back to Punjab and was unable to contact his lawyer. He had been appearing in the suit on each and every date. The witness of the plaintiff was also cross-examined but the defence of the defendant-applicant was struck off for non-filing of the written statement. It was also submitted by the defendant that he had purchased the suit land from Gurdeep Singh son of Sukhminder Singh vide registered sale deed dated 22.7.1992 and said Gurdeep Singh vendor is recorded to be co-sharer and he was in possession of the suit land and he delivered the possession of the land to the defendant at the time of the execution of the sale-deed and thus he has become co-sharer in possession of the suit land. Finally it was pleaded by the defendant Paramjit Singh that in case he was not permitted to participate in the proceedings he would suffer irreparable loss.
3. The application was contested by the plaintiff who took preliminary objection that the application was not maintainable, and the remedy lay with the defendant was to file a revision against the order dated 26.2.1993. On merits the plaintiff denied the allegations and prayed for the dismissal of the application filed by the defendant Paramjit Singh.
4. The learned trial Court allowed the application by mainly relying upon two citations reported as Tractor v. Bhim Singh, (1987-1)91 P.L.R. 435; and Pushpa Devi v. Sawan Singh and
Ors., (1982)84 P.L.R. 760. The learned trial Court tried to distinguish the citation reported as Pushpa Devi v. Sawan Singh and Ors. (supra), which was relied upon by the plaintiff.
5. I have heard Shri S.C. Chhabra, Advocate, appearing on behalf of the petitioner, and Shri Ravinder Chopra, Advocate, appearing on behalf of respondent No. l and with their assistance have gone through the record of this case and I am of the considered opinion that the impugned order dated 19.12.1994 is liable to be set aside.
6. Sukhdev Singh plaintiff-petitioner filed the suit on 17.8.1992. The defendant-applicant (respondent No. l) did not file the written statement right upto 28.2.1993, as a result of which his defence was struck off. Thereafter the case was posted for the evidence of the plaintiff and at the fag and after the expiry of two years, the respondent-applicant moved an application under Section 149 read with Section 151, C.P.C. for the recall of the order dated 26.2.1993. The order dated 26.2.1993 was subject to revision but no remedy has been adopted by the defendant-Paramjit Singh. Section 151, C.P.C., lays down as under:-
“151. Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
No doubt the technical procedure should not be applied with too rigour but the ends of justice should not be extended one side. The trial Judge ought to have kept the scales equally balanced and there was no occasion on his part to tilt the scales and ends of justice in favour of the applicant-defendant No.l. Firstly the defendant did not adopt the remedy prescribed under the Code. Secondly, he moved the application at a highly belated stage when the case was posted for final arguments. For such a litigant the provisions of Section 151, C.P.C., could not be implemented for his rescue. In Sucha Singh v. State of Punjab, (1990-2) 98 P.L.R. 492, the suit was at the initial stage and that factor weighed with the learned Judge in invoking the provisions of Section 151, C.P.C., so that the substantial justice between the parties may be done. Here the case had reached the final stage of arguments. The applicant-defendant
No. 1 remained negligent when he did not file the written statement for a period of about 10 months. Even his application is vague regarding his alleged illness at Calcutta and regarding his alleged return to Punjab. The authority of Tratorv. Bhim Singh (supra) relied upon by the learned Sub Judge also cannot be interpreted for the benefit of the defendant. On the contrary the proposition in hand is fully covered by the dictum of case low reported as Pushpa Devi v. Sawan Singh and Ors. (supra) and the ratio of this judgment has not been rightly appreciated by the trial Court, causing miscarriage of justice to the plaintiff-petitioner. There was an error of jurisdiction on the part of the trial Court.
7. Resultantly, the present revision petition is allowed, the impugned order dated 19.12.1994 is set aside and the application of defendant
No. l Paramjit Singh is hereby dismissed. Now directions are given to the trial Court to proceed with the suit according to law.
8. There will be no order as to costs.