Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8553 of 2018 Petitioner :- Udham Singh And Another Respondent :- Amar Singh(Since Deceased) And 08 Others Counsel for Petitioner :- Santosh Kumar Srivastava,A1776
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the order dated 2.11.2018 passed by the Additional District Judge, Baghpat in rejecting application 68-Ga 2 filed by the petitioners who are heirs of defendant no.1 namely Dashrath Singh.
The Original Suit No.150 of 2007 was filed with the relief of declaration of 1/4th share of the plaintiff in the house which was described with letters अ, ब, स, द in the plaint map. Simultaneously, the relief of permanent injunction was sought against the defendant nos.1 to 5 from making changes in the 1/4th share of the plaintiff in the aforesaid suit property, which has been described as House No.104 in Ward No.9, Agrawal Mandi Tatiri, Pargana, Tehsil and District Baghpat.
The said suit was contested by the defendants 2 to 6 by filing their written statement. The said suit was decreed in favour of the plaintiff vide judgment and order dated 17.10.2015 which was challenged in Civil Appeal No.40 of 2015, filed by the defendant nos.2 to 6. The defendant no.1 has been impleaded as proforma respondents in the said appeal.
During the pendency of the appeal, the opposite party no.2 namely defendant no.1 had died and the petitioners being heirs and legal representatives were substituted vide order dated 10.4.2017.
After substitution, they filed application 68Ga2 with the prayer to allow them time to file written statement. It was asserted by the petitioners that their father was an old and frail man and he was not well aware of the proceedings of the suit and, as such, he did not do pairvi and could not file written statement.
The plea taken by the petitioner has been repelled by the court below with the categorical observation in the order impugned that the thumb impression of defendant no.1 are found in the summons dated 9.8.2007 and the report of Process Server submitted to Sadar Munserim on record proves the fact that defendant no.1 was well aware of the proceedings of the suit having received notice of the same.
Despite having knowledge about the proceedings, he chose not to file a written statement. Mere assertion that he was an aged person would not be sufficient to grant time to the applicants to file written statement.
The order further records that from perusal of the order sheet, it is evident that the suit had proceeded ex-parte against the defendant no.1 on 25.9.2014.
These findings returned by the First Appellate Court in the order impugned could not be challenged by learned counsel for the petitioners with any material on record. Only assertion made during the course of argument is that the First Appellate Court ought to have granted time to the petitioners to file written statement to contest the suit, inasmuch as, every party in a case has a right to file written statement. The said principle has been laid down by the Apex Court in the case of Sumitbai & Ors. v. Paras Finance Co. Regd. Partnership Firm, Beawer (Raj.) Thru. (Smt. Mandanwar W/o Parasmal Chordia (dead) & Ors. in Civil Appeal No.117 of 2001 being in accordance with the principles of natural justice.
The relevant observations of the Apex Court in the aforesaid case as placed by the learned counsel for the petitioner are quoted as under:-
"8. Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion. Order XXII Rule 4(2), C.P.C. cannot be construed in the manner suggested by learned Counsel for the respondents."
Considering the said submissions of learned counsel for the petitioners, pertinent is to note that there cannot be a doubt to the legal proposition that every defendant in a suit has right to file written statement but the said right cannot be claimed as a perpetual right by such defendant who himself chose not to file the written statement within the time prescribed under Order 8 Rule 1 of the Code of Civil Procedure, 1908. As for the delay in filing the written statement, the defendant, who has failed to file the same within the period prescribed therein, was required to give his explanation so as to satisfy the court for condonation of such delay, with the reasons to be recorded in writing by such Court.
In the instant case, the suit has been proceeded ex-parte against the defendant no.1 in the year 2014 as he did not appear before the trial Court despite sufficient notice of the suit proceedings. No application was moved by the defendant no.1 during his lifetime for recall of the order to proceed ex-parte. In appeal, the petitioners being heirs and legal representatives cannot be allowed to file written statement without giving any explanation or proof of the fact that the notice was not properly served upon the defendant no.1.
For the aforesaid, no infirmity is found in the order impugned, the present petition is, accordingly, dismissed.
Order Date :- 27.11.2018 Jyotsana