Rajasthan High Court - Jaipur
Shrigopal S/O Late Shri Durga Prasad ... vs Pushpa D/O Late Shri Durga Prasad ... on 24 January, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 1461/2019
Shrigopal S/o Late Shri Durga Prasad Chitlangia, By Caste
Mahajan Chitlangiya, R/o Mohalla Madhoganj, Bajaj Road, Sikar
----Petitioner
Versus
1. Pushpa D/o Late Shri Durga Prasad Chitlangiya, By Caste
Mahajan Chitlangiya, R/o Mohalla Madhoganj, Bajaj Road,
Sikar
2. Rajaram S/o Late Shri Durga Prasad Chitlangiya, By Caste
Mahajan Chitlangiya, R/o Mohalla Madhoganj, Bajaj Road,
Sikar
----Respondents
For Petitioner(s) : Mr. Nirmal Kumar Goyal, Adv.
For Respondent(s) :
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Order
24/01/2019
By the impugned order dated 3rd November, 2018, the Court
below declined an application of the petitioner instituted under
Order 8 Rule 9 read with Section 151 CPC; of which the petitioner
is aggrieved of.
Counsel for the petitioner asserted that though the petitioner
- defendant number 1, did not file his written statement despite of
the fact that he was present in the Court below on 31 st March,
2011, and opportunity to file written statement was closed on 24 th
December, 2011, after affording several opportunities; yet the
application of the petitioner ought to have been entertained and
granted by the Court below in the interest of justice. The fact that
the issues were framed and proceedings have continued all along
(Downloaded on 05/06/2021 at 10:50:16 PM)
(2 of 4) [CW-1461/2019]
thereafter is also not in dispute. However, an application under
Section 151 CPC was instituted on 30 th October, 2017, with the
prayer to recall the order dated 24th December, 2011, closing the
right to file written statement, and that too has been declined on
2nd February, 2018. The respondent - defendant number 2, led
and concluded his evidence on 11 th May, 2018, and the Court
below specifically made an order to the effect that there was no
evidence led by the petitioner. It was on the even date the
petitioner instituted an application under Order 8 Rule 9 read with
Section 151 CPC denying certain statements/contents of the
written statement submitted by the respondent - defendant
number 2. Undeniably, no counter claim was made by the
petitioner.
While assailing the legality and validity of the impugned
order dated 3rd November, 2018; learned counsel for the petitioner
has relied upon the M/s. Sreenivas Basudev v. Shri Vineet Kumar Kothari: 2007 AIR (Gauhati) 5, and Kunnoth Moidu v. Mohammed Iqbal Shah & Ors.: 2014(4) Ker.L.J. 241.
Heard and considered.
Undeniably, right of the petitioner to file written statement after affording several opportunities was closed on 24 th December, 2011. An application for recall was also declined on 2 nd February, 2018, and these orders have not been challenged by the petitioner. The evidence by the respondent - defendant number 2, was led and concluded on 11th May, 2018, and it was at that juncture the petitioner instituted an application under Order 8 Rule 9 read with Section 151 CPC, stating that the stand of the respondent - defendant number 2, is prejudicial to his interest. (Downloaded on 05/06/2021 at 10:50:16 PM)
(3 of 4) [CW-1461/2019] A glance of Order 8 CPC would reflect that written statement was required to be filed within thirteen days from the date of service of the summon and the period could have been extended for reasons to be recorded, but no opportunity can be allowed beyond ninety days. Order 9 CPC deals with the appearance of parties and consequence of non-appearance, which is not the case at hand for right to file written statement of the petitioner was closed on 24th December, 2011, and an application for recall was also declined on 2nd February, 2018, and those orders have not been assailed by the petitioner.
It will not be out of place to take note of the fact, as informed by the counsel for the petitioner, that S.B. Civiil Writ Petition Number 8296/2018, instituted by the petitioner assailing the order dated 2nd February, 2018, was dismissed as withdrawn with liberty to take remedies against the order, if law permits.
In the case of Kunnoth Moidu (supra), the Kerala High Court examined the scope of Order 8 Rule 8 CPC in the backdrop of the counter claim, which is not the case at hand for the petitioner neither filed his written statement nor counter claim.
In the case of M/s. Sreenivas Basudev (supra), while dealing with the provisions under Order 8 Rule 1 and 10 CPC wherein plaintiff failed to furnish a copy of the document to defendant in terms of the direction given by the trial Court and the time to file written statement expired; Gauhati High Court interfered holding that the defendant's written statement ought to have been accepted instead of penalizing him since the same was filed beyond the period of ninety days of service of summon. Thus, factual matrix of the case at hand, and one, which has been relied (Downloaded on 05/06/2021 at 10:50:16 PM) (4 of 4) [CW-1461/2019] upon by the counsel for the petitioner is entirely different and distinguishable.
For the reasons aforesaid and in view of the reasonings recorded by the Court below while declining the application of the petitioner under Order 8 Rule 9 read with Section 151 CPC, vide impugned order dated 3rd November, 2018, would reflect that it suffers with no material illegality and/or irregularity so as to warrant any interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India.
In the result, writ application fails and is hereby dismissed.
(VEERENDR SINGH SIRADHANA),J SS/113 (Downloaded on 05/06/2021 at 10:50:16 PM) Powered by TCPDF (www.tcpdf.org)