Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1023 of 2019 Petitioner :- Anita Gupta And 4 Others Respondent :- Civil Judge (S.D.) FTC Mau And Another Counsel for Petitioner :- Mohammad Saleheen Ansari Counsel for Respondent :- Arvind Srivastava
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 8.2.2018 by which the trial Court closed opportunity of defendant Nos. 14 to 18 (the petitioners herein) to file written statement and the order dated 10.4.2018 rejecting the application paper No. 395Ga2 filed by the petitioners seeking recall of order dated 8.2.2018. The petitioners have also challenged an order dated 21.1.2019 rejecting recall application paper No. 411 Ga2 seeking recall of order dated 10.4.2018.
The petitioners got themselves impleaded as defendants in Original Suit No. 130/1997 filed by predecessor-in-interest of plaintiff respondent No. 2. The order impleading the petitioners was subjected to challenge before this Court by the plaintiff respondent and consequently, the order of impleadment was not got incorporated in the plaint. Ultimately, the order of impleadment was got incorporated in the plaint by carrying out requisite amendment in pursuance of the order of the trial Court dated 9.11.2017 upon payment of cost of Rs. 500/- by the plaintiff-respondent. A perusal of the order sheet reveals that since thereafter, several dates were fixed in the case for hearing of the application for temporary injunction, but the trial Court did not specifically grant any time to the petitioners to file written statement. On 8.2.2018, the trial Court in the absence of the petitioners, taking note of the fact that there is also no application filed by them seeking adjournment, closed their opportunity to file written statement. The petitioners filed a recall application in which they stated that along with the written statement, counter claim was also filed, which was in respect of a cause of action accruing in their favour before filing of the written statement, therefore, in any view, the same could not have been rejected. The trial Court without going into the said aspect rejected the recall application.
Counsel for the petitioners submitted that since the petitioners were impleaded subsequently and whereafter, the trial Court did not specifically grant them time for filing written statement nor plaintiff-respondent carried out amendment in the plaint impleading the petitioners, therefore, the trial court erred in forfeiting the right of the petitioners to file written statement. He further submitted that in any view of the matter, since counter claim was also filed along with the written statement, therefore, the same could not have been refused.
Sri Arvind Srivastava, learned counsel for the plaintiff- respondent does not oppose the petition, but pressed for cost.
Accordingly, the impugned orders are set-aside. The written statement cum counter claim already filed shall be treated to be part of record. The plaintiff-respondent shall have opportunity to file replication within two weeks. The petitioners shall pay Rs.10,000/- as cost, as agreed to by learned counsel for the parties, to the plaintiff-respondent within a week from today, failing which the impugned orders would stand revived and the instant petition would stand automatically dismissed.
Having regard to the fact that the suit is of the year 1997, it is desirable that the same be decided expeditiously, by fixing short dates, without granting unnecessary adjournments to the parties.
The petition stands disposed of accordingly.
(Manoj Kumar Gupta, J.) Order Date :- 25.2.2019 AM/-