Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 597 of 2019 Petitioner :- Giriraj Kishore (Deceased) And 6 Others Respondent :- The District Judge And Another Counsel for Petitioner :- A.G.Karunakar,Himanshu Upadhyay Counsel for Respondent :- Anshul Kumar Singhal,Vinod Kumar Agarwal
Hon'ble Mrs. Sunita Agarwal,J.
With the consent of learned counsel for the parties, the present petition is being decided at the stage of admission itself without calling for their affidavits.
Heard learned counsel for the parties and perused the record.
The present petition is directed against the revisional order dated 20.12.2018, whereby while setting aside the order of the trial court dated 5.3.2018, opportunity to the substituted defendants to file their written statement, has been closed.
A perusal of the record indicates that the Original Suit No. 5 of 2001 (Vishal vs. Girraj Kishore and others) had proceeded ex-parte for evidence of the plaintiff vide order dated 17.1.2006 It further appears from the record that the application under Order 7 Rule 11 CPC filed by defendant no. 1 was rejected vide order dated 22.11.2005, which was challenged in Revision No. 95 of 2005. The said revision was allowed on 26.5.2007 and the matter was remitted back for fresh consideration before the trial court.
On a pointed query made by the Court, learned counsel for the parties informed that no fresh order has been passed on application under Order 7 Rule 11 CPC.
It further appears from the record that a recall application was filed by the defendant to seek recall of the order dated 17.1.2006, pending disposal thereof, the defendant had unfortunately died on 8.5.2012. Thereafter, on a substitution application filed by the plaintiff, the present defendants were substituted being heirs and legal representatives of the deceased sole defendant vide order dated 7.2.2014.
The order sheet after 7.2.2014 indicates that the opportunity granted to the substituted defendants to file additional written statement was closed vide order dated 26.3.2015. On a recall application filed by the substituted defendants, vide order dated 5.3.2018, while recalling the order dated 26.3.2015, the trial court has granted opportunity to the defendants to file their written statement.
It has further opined that inconvenience caused to the plaintiff can be compensated by imposing cost of Rs. 1,000/- on the defendants.
The order of recall to take the written statement on record had been challenged before the revisional court, which has found that the substituted defendants cannot be allowed to ventilate their own grievances and at the most, they can present the case of the deceased original defendant. It has further opined that since the suit had proceeded ex-parte on 17.1.2006, without seeking recall of the said order, the trial court could not permit the substituted defendants to file their written statement.
It is admitted to the learned counsel for the parties that the original defendant had filed an application for recall of the order dated 17.1.2006.
From the contents of the order dated 5.3.2018, it is, however, sought to be submitted by learned counsel for the plaintiff/respondent that the application for recall of the order dated 17.1.2006 filed by the original defendant was not pressed during his life time and this fact was admitted to the substituted defendants. However, he has not been able to bring any order of the trial court before this Court, which would indicate that the application to seek recall of the order to proceed ex-parte dated 17.1.2006 was not pressed or any order was passed on the said application by the trial court.
This Court, therefore, finds that two applications, one seeking recall of the order dated 17.1.2006 and another under Order 7 Rule 11 CPC are pending as on date before the trial court. Mere fact of death of the original defendant during pendency of the said applications, would not be a ground to say that the recall application was not pressed.
Noticing the above facts and that the present defendants have been substituted only on 7.2.2014 and the trial court in exercise of its own wisdom, had recalled the order dated 26.3.2015, this Court finds that the revisional court has erred in interfering in the order dated 5.3.2018 so as to take a different view from what has been taken by the trial court.
The scope of revision is limited to the extent of interference in case of jurisdictional error or manifest illegality being committed by the trial court and it was not open for the revisional court to take a different view from what has been taken by the trial court.
For the aforesaid, the revisional court while passing the order dated 20.12.2018 is found to have exceeded in its revisional jurisdiction is hereby set aside.
The order of the trial court in granting permission to the substituted defendants to file their written statement is found to be justified and is hereby upheld. The written statement filed by the substituted defendants be taken as part of record.
It is informed by learned counsel for the petitioner that the cost as imposed by the trial court vide order dated 5.3.2018 had been deposited within the time granted by it.
Having noticed the fact that the application to seek recall of order dated 17.1.2006 is pending before the trial court, it is directed that the trial court shall treat the said order having been recalled on account of the fact of presence of the substituted defendants and their written statement having been accepted.
Further, in so far as the application under Order 7 Rule 11 CPC is concerned, it is incumbent upon the trial court to decide the said application, in accordance with law, before proceeding with the suit. It is further directed that the trial court shall decide the said application either on the next date fixed or on a short date to be fixed within a further period two weeks, thereafter. In any case, no adjournment shall be granted to any of the parties for dismissal of the said application.
It is further directed the trial court shall make an endeavour to decide the Original Suit No. 5 of 2001, as expeditiously as possible, preferably, within a period of one year from the date of submission of certified copy of this order, after disposal of Order 7 Rule 11 CPC application.
In any case, none of the parties shall be granted any adjournment as the matter has already been protracted for long.
Subject to the above observations and directions, the petition is disposed of.
Order Date :- 28.2.2019 Brijesh