Read Order: Suman and Another v. Bhoop Singh

Monika Rahar 

Chandigarh, May 07, 2022: In a case where the petitioners’ defence was struck off due to their failure to submit their response or mark their appearance before the Trial Court in proceedings initiated by the filing of a petition by the respondent claiming custody of his children, the Punjab and Haryana High Court has imposed cost upon the petitioners and granted them one more opportunity to the present their defence. 

The Bench of Justice Arun Palli held, “Undoubtedly, the petitioners have been remiss and failed to pursue their cause with diligence. But it shall be equally true that in the event, they are not permitted to submit their written statement and contest the petition on merit in every likelihood, their rights and interest would be severely affected.”

Vide this petition under Article 227 of the Constitution, the petitioners prayed for setting aside the order passed by Principal Judge, Family Court, Hisar, vide which their defence was struck off. 

The petition filed by the respondent under Section 25 of the Guardians and Wards Act, 1890 claiming custody of his minor daughter and son who were in the custody of the petitioners, was pending adjudication. Ex facie, despite repeated opportunities, the petitioners failed to submit their response and did not even choose to appear before the Court on the date fixed. 

As a result, the defence of the petitioners was struck off. 

The Court observed at the very outset that undoubtedly, the petitioners were remiss and failed to pursue their cause with diligence, but it shall be equally true that in the event they were not permitted to submit their written statement and contest the petition on merit in every likelihood, their rights and interest would be severely affected. 

Therefore, to secure the ends of justice, in the opinion of the Court, the petitioners were required to be afforded one opportunity to file a reply/ response and contest the matter. However, the Court added that the respondent deserved to be compensated with suitable costs for the delay caused by the petitioners due to which the matter did not make any tangible progress in the past. 

Accordingly, the petition was allowed and the impugned order was set aside. The Family Court, Hisar was directed to afford one effective opportunity to the petitioners to submit their written statement/response, subject to payment of costs of Rs.10,000/-. 

It was made clear that in the event, the petitioners failed to submit the written statement on or before the stipulated date or defaulted to tender costs, as indicated above, the Court directed the defence of the petitioners to be deemed to have been struck off and no further adjournment to be granted by the Court in this regard. 

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