Suit for declaration
jitender pawaria
(Querist) 18 August 2011
This query is : Resolved
R/Sir,
That the said suit was filed by the another advocate i join this suit at the stage of defendants evidence. On the same day after tendering the affidavit of one witness close his evidence. now the case fixed for final argument when i prepare my final argument i inspected the judicial file. when i inspected then i came to know that defendant no. 1 not filed his written statement nor his counsel filed Vakalatnama and court not passed ex-party order against him neither passed order for defense struck off of defendant no.1. Counsel for defendant no.1 only file his Power of attorney for one date only. And on order sheet Ld. Court put presence of counsel for defendant no.1 by his name on every date.
Now what can i do and why Ld. court accept evidence on behalf of defendant no.1
Raj Kumar Makkad
(Expert) 18 August 2011
In the given facts, the evidence wrongly put forth on behalf of defendant shall definitely be discarded as taken beyond law. In your case, earlier counsel and the plaintiff kept on sleeping for such long period and never raised any objection on this major lapse and the defendant side also became careless. Anyway, written statement cannot be filed at this stage so no evidence can be taken into consideration on behalf of defendant, however, his presence may be got marked and counsel may be permitted to file his vakaltnme on his behalf.
Advocate Rajkumarlaxman
(Expert) 18 August 2011
I aleast have not clearly understood your query. that thing i want to know is from your above facts is that what type of suit has been filed ? you are for whom ? how can the court put counsel's presnce if he is absent for the date.
Advocate Rajkumarlaxman
(Expert) 18 August 2011
Another thing is that the defendant can move for filing his written statement by filing an writ petition for the same which we have done and succeeded
valentine thakkar
(Expert) 19 August 2011
WS should be filed within 30 days from the date of filing the petition, however, the same can be extended by a request from the defendant. However, in any case it should not exceed 90 days. The stage of submitting WS and evidence by the defendant has lapsed and timely objection could have resulted in striking of the right to defend.
I do not understand what you want to convey by, "...the defendant can move for filing his written statement by filing an writ petition for the same which we have done and succeeded." Please come out clearly.
Rajarshi Bhowmik
(Expert) 19 August 2011
Look the position bit complicated no doubt. I also admit and appreciate the view of Mr Makkad. But my point would be as you have mentioned that the council of the Defendant no 1 only file his Power of attorney for one date only and as you know it better now the defendant can't claim the lack oh his knowledge regarding this case and it can be presumed that the Defendant no 1 might have thought that there is no ground on your case or your case is bad in law and so he has not filed even any written statement. It might be a process of the Defendant no 1 to make the case lengthy and complicated. In my practicing tenure I have forced to face such situation thrice. As it is held by superior court that "no order of making an ex-party order/hearing could be issued if it appears that no subsequent application or relief is prayed after the appearance of the defendants or their duly authorize person in accordance with law" you can claim that being known of this case the Defendant no 1 declines to give any written statement does not make prejudice to Defendant no 1(though it may be set a side by the Appellate Court) but to avoid instant complicity or lengthiness you are in real short of options, but to make you argument by presuming that the Defendant no 1 had appeared and declined to give any W/s or contest the case. For furtherance please visit to www.rajarshibhowmik.webs.com
