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                     IN THE SUPREME COURT OF INDIA

                      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

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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.

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5.       With these observations, the appeal stands disposed of.

                                                 ....................J.                                                   (P.P. Naolekar)

                                                 ....................J.                                                   (V.S. Sirpurkar) New Delhi; May 02, 2008.