B.N. Kirpal, J.
(1) A suit for perpetual injunction was filed by the Petitioners against the respondent on 20th October, 1978. The case of the petitioners was that large portion of land measuring about two thousand square yards was owned by them but had been taken possession of illegally by the respondent. According to the petitioners the respondent was also trying to encroach upon other land measuring approximately seven thousand square yards which belonged to the petitioner. Summons having been issued no written statement was filed by the defendant and repeated adjournments were sought. Ultimately, on 3rd April, 1980 the trial court ordered the striking off the defense of the respondent under Order 8 Rule 10. It was directed that the case be posted for ex parte evidence on 18th July, 1980. Before the next date of hearing an application under Order 9 read with Section 151 Civil Procedure Code was filed. It was stated in the application that on 3rd April, 1980 no counsel could attend on behalf of the respondents as there had been a strike Which had been called by the Delhi Bar Association. It was further stated that when the case was called a representative of the respondent was present in court Along with the written statement. It was averted that the court refused to take the written statement on record as it had not been signed by the counsel and also for the reason that each page had not been signed by the respondent or their counsel. It was finally contended that sufficient cause had been shown for the non appearance of the counsel on the date fixed.
(2) Reply was filed to the said application, it was, inter-alia, contended that the application under Order 9 Civil Procedure Code was not maintainable. It was also stated that the said application was moved more than one month after the order dated 3rd April, 1980 had been passed and, thereforee, it was barred by limitation. By order dated 11th August, 1980, the trial court treated the said application as an application for review. It also entertained an oral request for condensation of delay and condoned the delay in exercise of its power under Section 5 of the Limitation Act. The Trial Court reviewed the order dated 3rd April, 1980 and allowed the written statement to be taken on record on payment of Rs. 50.00 as costs. The aforesaid order dated 11th August, 1980 is being challenged. It is contended by Shri Aggarwal that there was no proper application under Section 5 of the Limitation Act and delay could not have been condoned. It is also contended by him that the application under Order 9 was not maintainable and the court could not have converted that application to an application for review.
(3) It is now well settled that if an application is maintainable, then merely mentioning of a wrong provision of the law would not divest the court of its jurisdiction to deal with such an application. It is not disputed by the learned counsel for the respondent that such an application for review or under Order 9 was not maintainable but she further contends that the application should be regarded as one under Section 148 GPG. In this connection strong reliance has been placed by Mrs. Bahri on a decision of this court in the case of Sada Rum v. Delhi Development Authority : AIR1974Delhi35 . It is also her contention that the present revision under Section 115 is not maintainable.
(4) The aforesaid case of Sada Ram (Supra) was similar to the present one. In that case a suit was filed on 17th May) 1981. Despite opportunities having been granted a number of times written statement has not been filed. Ultimately, on 13th January, 1972 the trial court struck off the defense and directed the case to be set down for ex-parte evidence. Some witnesses were examined and thereafter the defendant in that suit filed an application for permission to file a written statement. The trial court allowed the application and took the written statement on record. That order was challenged in a revision. V.S. Deshpande J. (as he then was) held that the court could extend time for filing the written statement under Section 148 read with Section 151 and Order 8 Rule 10 of CPG. It was also noticed by him that the court had wide direction to allow the defendant to file a written statement subject to adjustment of societies (equities ?) by payment of costs etc. even if the defendant was negligent in not filing the written statement in time. Lastly it was held that such an order which was passed by the trial court, could not be impugned under Section 115 CPG.
(5) The aforesaid decision is clearly applicable to the present case. Mr. Aggarwal, however, sought to distinguish the same. His contention is that in Sada Ram's case. the court was concerned with unamended provisions of Order 8 Rule 10. He has submitted that whereas priviously the court had a discretion whether to pass an order under Order 8 Rule 10 or not now the provisions of Order 8 Rule 10 have become mandatory. It is no doubt true that the provisions have now become mandatory, but the present case, however, it will make no difference Under the amended provisions of Order 8 Rule 10 the court now, apart from having jurisdiction to pass any order as it deem fit can also pass a judgment and thereupon a decree is to be drawn. The court, however, in the present case chose not to pronounce the judgment and consequently no decree was drawn. The court merely struck off the defense of the defendant. This order was similar to the one which was passed by the Trial Court in Sada Ram's case. In Sada Rum's case the Court need not have passed that order but the Court did order the striking off the defense. In principle, thereforee, whether under the unamended provisions or under the amended provisions if the defense is struck off, the court has discretion in exercise of its powers under Section 148 to permit written statement being filed. In my opinion this permission should not be granted as a matter of course. A proper case should be made out making the court to exercise its discretion under Section 148. However if the court has exercised its discretion under Section 148 Gpg as held in Sada Ram's case, the revision under Section 115 Gpg is not maintainable. In the present case I find that on 3rd April, 1980 there was a strike of the lawyers. There was a good cause, thereforee, the non-appearance of the counsel on behalf of the defendant. It is not disputed that on that day a written statement was presented to the court. The court, however, appears to have been of the view that the same was not properly signed and the costs had also not been paid. In my view under such circumstances the equitics could have been properly adjusted by imposing heavy costs on the respondents. The costs imposed by the trial court appear to be very nominal.
(6) For the aforesaid reasons the revision is dismissed. In view of the fact that undue delay had taken place in filing written statement the costs of this revision shall be borne by the respondent. Counsel's fee Rs. 500.00 . The parties to appear before the trial court on 28th May, 1982 for further proceedings.