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2005 DIGILAW 545 (PAT)

Upendra Kumar Singh v. Raj Kishore Singh

2005-06-20

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the petitioner (defendant No. 4) learned counsel for the opposite parties No. 1 and 2 (plaintiffs), learned counsel for the opposite parties No. 3 and 4 (State of Bihar and its authorities) and learned counsel for the opposite party No. 5 (defendant No. 3). 2. The defendant-petitioner is aggrieved by order dated 30.12.2004 passed by the learned Subordinate Judge-I, Chapra, by which he rejected the petition dated 28.12.2004 of the defendant No. 4 (petitioner) for return of the plaint of Title Suit No. 207/2004 to the plaintiffs (opposite parties No. 1 and 2) for filing it afresh after compliance of the provisions of sec. 80(1) of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity). 3. The short fact of the case is that the suit was filed on 18.5.2004 and on that very date the Court below dispensed with the filing of notices under Sec. 80(1) of the Code and directed issuance of notice to the defendants. It transpires that thereafter the plaintiffs filed a petition for restraining the defendants from implementing no confidence motion which was passed by the Panchayat Samiti on 19.5.2004 against defendant No. 3 who was the Pramukh. The said injunction petition was dismissed on 21.12.2004 by the learned court below. It further transpires that since more than 90 days had lapsed, issues were framed in the suit by the learned court below on 27.12.2004. 4. Learned counsel for the petitioner submits that since the petition for ad-interim injunction, which was the immediate relief sought by the plaintiffs, was rejected by the court below, it was incumbent upon it to return the plaint to the plaintiffs for presenting it after compliance of the requirements of Sub-sec. (1) of sec. 80 of the Code. Hence the petitioner defendant No. 4 filed a petition under the proviso to Sub-sec. (2) of sec. 80 of the Code on 28.12.2004 in the court below, but the same was rejected by the impugned order. 5. (1) of sec. 80 of the Code. Hence the petitioner defendant No. 4 filed a petition under the proviso to Sub-sec. (2) of sec. 80 of the Code on 28.12.2004 in the court below, but the same was rejected by the impugned order. 5. On the other hand, learned counsel for the plaintiffs- opposite parties submits that filing of notice u/s. 80(1) of the Code had already been dispensed with by the learned court below, whereafter the defendants got ample opportunities to file their written statement, which was not availed by them and the prescribed period of 90 days lapsed and thereafter issues were framed by the court below on 27.12.2004, hence there was no occasion for the learned court below to return the plaint for filing it afresh after compliance of the provisions of sec. 80(1) of the Code. 6. After considering the arguments of the learned counsel for the parties and after perusing the materials on record it is amply clear that the learned court below had already dispensed with the filing of the notices u/s. 80(1) of the Code on 18.5.2004 but the said order had never been challenged by any of the defendants and they appeared after receiving the notices etc. It is also amply clear that issues have already been framed in the suit. Hence, in the aforesaid circumstances, I do not see any illegality or jurisdictional error in the impugned order. 7. During course of argument learned counsel for the petitioner-defendant No. 4 raised the issue that the suit itself was not maintainable but from the impugned order it transpires that the said issue has not been raised by the petitioner in the court below. Hence, this order will not debar the petitioner from filing any petition challenging the maintainability of the suit, which, if filed, will be considered by the learned court below according to its own merit and provisions of law. 8. It further transpires that the defendants could not file their respective written statements due to the pendency of plaintiffs injunction petition as well as the defendants petition under the proviso to sec. 80(2) of the Code in the court below. Hence, this Court allows them one opportunity to file their respective written statements, if they so like, within a period of 30 days from today. With the aforesaid directions/observations this civil revision is dismissed.