Subhash Chander Sachdeva Vs. Yoginder Mohan Sachdeva & ANR. [2008]
INSC 789 (2
May 2008)
CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO.3244 OF 2008 [ARISING OUT OF SLP (CIVIL) NO.22097 OF 2007] SUBHASH
CHANDER SACHDEVA Appellant(s) VERSUS YOGINDER MOHAN SACHDEVA & ANR.
Respondent(s) ORDER 1. Leave granted.
2. Respondent No.1 filed a suit
against the appellant and Respondent No.2 for partition of suit property on the
basis of a Will dated 3.8.1992.
3. By an order dated 19.12.2005,
the appellant's defence was struck off by the learned Single Judge of the High
Court against which the appellant preferred an appeal challenging that order.
The appeal was admitted by the Division Bench but it did not grant stay of the
proceedings of suit pending before the learned Single Judge.
Ultimately, the Division Bench
dismissed the First Appeal of the appellant. Against the said order the present
appeal by special leave petition has been filed. As stay was not granted to the
proceedings of the civil suit, it was proceeded with and we have been informed
that by an order dated 1st August, 2007, the learned Single Judge of the High
Court has decided the suit and a judgment and decree has been passed. As the
judgment and decree in the suit is already passed, the appropriate remedy
available to the appellant is to challenge the judgment of the learned Single
Judge in an appeal before the Division Bench and in the said appeal to raise a
question in regard to the validity of the order passed by the learned Single
Judge whereby he has struck down the defence of the appellant.
4. It appears to us that the
defendant was seriously ill when his defence was struck off and the gap between
the dates on which the case was adjourned from time to time, for the appellant
to take steps in the suit proceedings, was very short and that the matter is
pending consideration before us challenging the order of striking off the
defence of the appellant, we find that in the interest of justice the appellant
should be permitted to raise the question of validity of the order passed by
the learned Single Judge whereby his defence was struck off in an appeal if
preferred by the appellant against the final judgment of the learned Single
Judge. We grant this liberty to the appellant considering all the aspects of
the case.
5. With these observations, the
appeal stands disposed of.
....................J.
(P.P. Naolekar)
....................J.
(V.S. Sirpurkar) New Delhi;
May 02, 2008.
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