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2006 DIGILAW 2083 (DEL)

CHANDERWATI v. TARA CHAND

2006-11-14

J.P.SINGH

body2006
J. P. SINGH, J. ( 1 ) THIS Civil Revision Petition under Section 115 of the Code of Civil procedure is directed against orders dated 18. 1. 2003 and 26. 2. 2003 passed by the civil judge, Delhi. ( 2 ) VIDE order dated 18. 1. 2003 an application under Section 151 CPC filed behalf of defendant Nos. 1 to 4 for recalling the order dated 23. 7. 2002 striking out their defence, has been dismissed and vide order dated 26. 2. 2003 another application under Section 114 CPC for recalling the orders dated 23. 7. 2002 and 18. 1. 2003 has also been dismissed. ( 3 ) I have heard Mr. Rajat Aneja, Advocate learned counsel for the petitioner and Mr. Sanjay Diwakar Advocate learned counsel for respondent No. 1 for disposal of this matter and have gone through the file. ( 4 ) BRIEFLY the facts are that respondent No. 1 (plaintiff in the trial court, hereinafter referred to as 'plaintiff') filed a suit for possession, declaration, perpetual injunction and mesne profits against the petitioners (defendant Nos. 1 and 4 in the trial court, hereinafter referred to as defendants no. 1 and 4 ). There were other defendant Nos. 2 and 3, sons of defendant No. 1 besides Dy. Commissioner of Police as defendant No. 5 and the SHO of Police station Pratap Nagar as defendant No. 6. The disputed suit property is occupied by the heirs of ancestor Meria and there are numerous property disputes between them resulting in complaints against each other to the police also. The cause of action is stated have arisen in 1987 and is alleged to have continued from time to time. The suit was filed on 26. 4. 2001. It was prayed that defendants no. 1 to 4 be restrained from assigning, selling or letting out the portions of the property, shown in red in the site plan. ( 5 ) THE defendants 1 to 4 moved an application under Section 10 CPC seeking stay of the suit till final disposal of an earlier suit filed by son of defendant No. 4 and brother-in-law of defendant No. 1 titled "radhey Shyam Vs. Tara Chand". Copies of plaint and written statement of the said suit were filed in the present suit. Tara Chand". Copies of plaint and written statement of the said suit were filed in the present suit. It was alleged that the plaintiff had intentionally not impleaded the owner of the property, in the suit filed by him and had instead impleaded owner"s mother as defendant No. 4 and sister-in-law as defendant No. 1 and nephews of Radhey Shyam as defendant Nos. 2 and 3. It was alleged that defendant Nos. 1 to 4 were members of the family of Radhey Shyam and were living with him in a portion of the disputed property and that plaintiff Tara Chand himself was an unauthorized occupant. It was submitted that the parties were same, issues in both the suits were same and decision of the earlier suit shall be final and binding. On these grounds stay of the present suit was sought. In reply to this application it was alleged that the defendant Nos. 1 to 4 were trying to mislead the court and that the matter in the previous suit titled "radhey Shyam Vs. Tara Chand" was not substantially the same as in the present suit. It was alleged that the earlier suit filed by Radhey Shyam was for restraining Tara Chand (plaintiff in the present suit) from realizing rent of a portion of the property, while the present suit is for possession, declaration, perpetual injunction and mesne profits against family of Radhey Shyam. ( 6 ) PERUSAL of the order sheets of the present suit shows that on 4. 7. 2001 matter was adjourned to 22. 8. 2001 for filing written statement on behalf of defendants No. 1, 2 and 4 and for service of remaining defendants. On 22. 8. 2001 defendants No. 1, 2 and 4 instead of filing written statement filed the application under section 10 CPC and again the matter was adjourned for filing written statement by defendant 1,2 and 4 as also reply to application under section 10 CPC and for filing pleadings of the earlier suit. On the next date i. e. , 27. 9. 2001 reply to the application under Section 10 CPC was filed, time was granted for filing documents pertaining to the earlier suit and the matter was adjourned for arguments on the application under Section 10 CPC. ( 7 ) HOWEVER on 21. 2. On the next date i. e. , 27. 9. 2001 reply to the application under Section 10 CPC was filed, time was granted for filing documents pertaining to the earlier suit and the matter was adjourned for arguments on the application under Section 10 CPC. ( 7 ) HOWEVER on 21. 2. 2002 the application under Section 10 CPC was not pressed and it was stated that the objections taken in the application under section 10 CPC shall be taken in the written statement on behalf of defendants no. 1,2 and 4 and that matter was adjourned to 27. 3. 2002 for filing written statement. Again time was sought and the matter was adjourned for 2. 4. 2002 for filing written statement on behalf of defendants No. 1,2 and 4. On 2. 4. 2002 the matter was transferred in routine to another court and the parties were directed to appear before the said court at 2. 00 P. M. for orders. The transferee court heard another application and ordered deletion of names of defendant Nos. 5 and 6 and directed to file amended memo of parties and written statement on 23. 7. 2002. ( 8 ) IT is recorded in the order dated 23. 7. 2002 that the learned counsel for defendants No. 1, 2 and 4 was present in the court at 12. 05 PM and had requested for filing written statement at 2. 00 P. M. but none has appeared on his behalf and written statement has not been filed therefore the defence is struck off and the matter was adjourned to 16. 9. 2002. ( 9 ) THE application under Section 151 CPC on behalf of defendant Nos. 1 and 4 for recall of the order dated 23. 7. 2002 was filed on 24. 7. 2002, in which it was submitted that defendant No. 1 and 4 were to file written statement at 2. 00 p. M. , but the learned counsel got busy in some other court whereas defendant no. 1 and 4 were present in the court with their written statement but they did not file the same because they were illiterate persons. The written statement along with the documents was attached with the application and it was prayed that the same be accepted and taken on record. ( 10 ) NOTICE on the said application dated 24. 7. 1 and 4 were present in the court with their written statement but they did not file the same because they were illiterate persons. The written statement along with the documents was attached with the application and it was prayed that the same be accepted and taken on record. ( 10 ) NOTICE on the said application dated 24. 7. 2002 under Section 151 CPC was issued for the date fixed i. e. , 16. 9. 2002. Again the matter was transferred in routine to some other court. The said application was dismissed vide impugned order dated 18. 1. 2003 and thereafter the application dated 13. 2. 2003 was filed again praying for recall of the order dated 23. 7. 2002 and order dated 18. 1. 2003 and for taking the written statement of defendant No. 1 and 4 on record. The said application was dismissed by the second impugned order dated 18. 1. 2003. ( 11 ) THE above facts and circumstances show that the property in dispute was allotted to the ancestor of the parties in the year 1940. The family grew and the descendants were residing in different portions of the property, so much so that some of the portions were even let out. There are manifold disputes between the parties and earlier civil litigation was going on when the suit in question was filed. There is no doubt that four opportunities were given to file written statement but the fact remains that an application under Section 10 CPC was not pressed, subject to the condition that the same objections will be taken up in the written statement. The written statement was ready but somehow the learned counsel could not appear at 2. 15 P. M. on 23. 7. 2002 and the defence was struck off. There is another material fact that the application for recalling the order dated 23. 7. 2002 was moved on the very next day along with the written statement and documents as undertaken by the learned counsel for defendant Nos. 1 and 4 in the first call on 23. 7. 2002. ( 12 ) SINCE the parties were litigating since long, in my view, it will be better to effectually and completely decide the disputes between them and defendant Nos. 1 and 4 should be given chance to file written statement and contest the matter on merits. 1 and 4 in the first call on 23. 7. 2002. ( 12 ) SINCE the parties were litigating since long, in my view, it will be better to effectually and completely decide the disputes between them and defendant Nos. 1 and 4 should be given chance to file written statement and contest the matter on merits. ( 13 ) CONSIDERING all the facts and circumstances I am of the opinion that the trial court has not exercised its jurisdiction to accommodate the learned counsel in the facts and circumstances of this case. I, therefore, set aside both the impugned orders, however subject to small cost of Rs. 2,000/- (Rupees two Thousand) only, because the parties appear to be poor. On payment of costs the written statement shall be taken on record and the matter will proceed in accordance with law. The parties are directed to appear before the trial court on 5th February, 2007 for payment of costs and further proceedings.