Himachal Pradesh High Court
Jiwan Singh vs Saroj Bala on 3 January, 2018
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 133 of 2017.
.
Date of decision: January 03, 2018.
Jiwan Singh. ......Petitioner.
Versus
Saroj Bala. .....Respondent.
Coram
For the petitioner
:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
Mr. Dheeraj K. Vashisht, Advocate.
For the respondent : Mr. Y.P. Sood, Advocate.
Dharam Chand Chaudhary, J. (Oral)
Order under challenge in this petition has been passed on 13.12.2016 in an application filed under Order 6 Rule 17 read with Section 151 CPC in case No. 107/09 by learned Junior Civil Judge, Court No. I, Una.
2. What could this Court gather from the perusal of the record and the submissions made on both sides, in a nut shell is that the petitioner-defendant did not engage Shri A.K. Saini, Advocate to defend him in the suit which was filed by the respondent-plaintiff for declaration and also permanent prohibitory injunction against the petitioner-defendant. The written statement to the suit filed through Shri A.K. Saini, 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 20/05/2018 21:04:10 :::HCHP 2Advocate, on the face of it demonstrate that the entire plaintiff's case as set out in the plaint has been admitted as correct.
.
According to the petitioner-defendant the written statement has not been filed by him. Though he admit his signature thereon, however, it is clarified that the same were obtained on blank papers for the purpose of compromising the dispute. It seems to be so because the signature of the petitioner-defendant are not above the typed word "defendant" but below it. It seems to have done for adjustment of the space on the paper used for typing out the written statement which was got signed from the defendant when blank. The petitioner-defendant, no doubt, has filed the fresh written statement and the counter claim also through Shri P.C. Sharma, Advocate, however, Learned trial Court vide order passed on 11.2.2014 has dismissed the application filed with a prayer to take off the record the written statement filed earlier by Shri A.K. Saini, Advocate. No doubt, the petitioner has not assailed that order any further and may be due to learned trial Court has initially framed the issues in the suit on 22.11.2012 on taking into consideration the fresh written statement filed by the petitioner-defendant through Shri P.C. Sharma, Advocate. In view of the fresh written statement was not on record of the learned trial Court, issues based on the same could have not been framed. Therefore, the entire proceedings from that stage in the suit stood vitiated.
::: Downloaded on - 20/05/2018 21:04:10 :::HCHP 33. True it is that the issues so framed were ordered to be struck off by learned trial Court vide order dated 14.2.2017 .
passed in an application filed for the purpose by the respondent-
plaintiff during the pendency of the application for amendment in the written statement filed by Shri A.K. Saini Advocate.
However, in a situation when in the opinion of this Court, the entire proceedings from the stage of framing issues on 22.11.2012 stood vitiated, there is no need to elaborate various stages in the suit after that stage including dismissal of the application filed by the petitioner-defendant for seeking permission to take off from the record the written statement filed through Shri A.K. Saini, Advocate nor the order passed in the application filed by the respondent-plaintiff for seeking modification or alteration of issues as the issues were framed on the basis of the pleadings particularly the written statement which was not on record. There is also no need to discuss the question of desirability of filing an application for seeking amendment in the written statement dismissed vide order under challenge in this petition and suffice would it to say that quashing of proceedings in the suit from the stage of framing issues on 22.11.2012 on the basis of the pleadings which were not on record would serve the ends of justice.
4. At the same time as already noticed in the order passed on 30.8.2017 in this petition once the petitioner-
::: Downloaded on - 20/05/2018 21:04:10 :::HCHP 4defendant has disputed the question of engagement of Shri A.K. Saini, Advocate to defend him in the suit and also the filing of .
written statement through Shri Saini by him, the best available course to the trial Court was to have accorded the permission to take off such written statement from the record and allow the petitioner-defendant to file fresh written statement.
5. Now this Court order that the written statement filed by Shri A.K. Saini, Advocate shall be treated to be off the record.
As a result thereof the petitioner-defendant shall have the right to file fresh written statement and the one he filed through Shri P.C. Sharma, Advocate on 15.12.2009 shall be his written statement to the suit. The suit shall now to proceed further from the stage of affording opportunities to the plaintiff for filing replication to the written statement and written statement to the counter claims to the respondent-plaintiff. Since the suit pertains to the year 2009, it is expected from the parties on both sides to render all assistance to the Court to dispose of it finally at the earliest preferably by 31st December, 2018.
6. The parties through learned counsel representing them are directed to appear in the trial Court on 17.1.2018.
7. This petition is accordingly disposed of, so also the pending application (s), if any.
(Dharam Chand Chaudhary), Judge.
January 03, 2018 (vs) ::: Downloaded on - 20/05/2018 21:04:10 :::HCHP 5 .
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