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2011 DIGILAW 806 (RAJ)

Smriti Poddar v. Seema Sharma

2011-04-25

DINESH MAHESHWARI

body2011
JUDGMENT 1. - With the consent of the learned counsel for the parties, the matter has been heard finally at this stage itself. 2. The plaintiff-respondent has filed a civil suit (C.O.No.129/2007 in the Court of Additional District Judge No.2, Jodhpur) for recovery of possession and for mandatory injunction and perpetual injunction against the defendants-petitioners, the adjoining neighbours, in relation to a 10' x 60' strip of land on the allegations that the defendants have encroached over the said strip and have un-authorisedly raised a wall thereat. 3. In the aforesaid civil suit, the defendants-petitioners were served with the summons and put appearance in the Trial Court through their counsel on 27.11.2007. On this date itself, an application was moved by the defendant-petitioner No.2 under Order I Rule 10 CPC seeking orders for deletion of his name from the array of parties on the allegations that he was not the owner of the plot referred in the plaint. 4. The application aforesaid came to be rejected by the learned Trial Court on 21.04.2008. On this date itself, the learned Trial Court observed that the defendant No.1 (petitioner No.1 herein) had not filed the written statement and, therefore, ordered closing down her right of filing the written statement; and directed the defendant No.2 (petitioner No.2 herein) to file the written statement. 5. On the next date i.e., 28.05.2008, the Trial Court noted that the written statement had not been filed but adjourned the matter to 02.08.2008 for appropriate orders. 6. However, it appears that on 28.05.2008, after the matter had been adjourned, the petitioners filed the applications with reference to Sections 148 and 151 of the Code of Civil Procedure and with the prayer for taking written statement on record while submitting that they could not file the written statement earlier for having gone to Kolkata in relation to marriage of their son. On 02.08.2008, the learned Trial Court noted that the written statement had been filed with application under Section 148 CPC on 28.05.2008; and copy thereof was received by the counsel for the petitioner with objection. 7. On 02.08.2008, the learned Trial Court noted that the written statement had been filed with application under Section 148 CPC on 28.05.2008; and copy thereof was received by the counsel for the petitioner with objection. 7. Thereafter, by the impugned order dated 03.11.2008, the learned Trial Court proceeded to reject the application moved by the defendant-petitioner No.2 with the observations that the written statement in relation to defendant No.1 had already been closed on 21.04.2008 and in relation to the defendant No.2 also, the written statement was filed more than six months after service of summons. The learned Trial Court found unsatisfactory the reason for delay as assigned on behalf of the defendant No.2 and, while rejecting the3 application, directed that the written statement be taken off the record and be placed in Part-D. Aggrieved, the petitioners have filed this writ petition and seek to challenge the order dated 21.04.2008 and so also the order dated 03.11.2008. It is prayed that the name of the petitioner No.2 may be deleted from the array of parties in the suit; and the written statement may be taken on record. 8. Heard the learned counsel for the parties and perused the material placed on record. 9. So far the order dated 21.04.2008 passed by the learned Trial Court in rejection of the application moved by the petitioner No.2 for deletion from the array of parties is concerned, this Court finds no reason to interfere. The leaned Trial Court has rightly observed that the plaintiff has prayed for the relief of injunction also with the allegations that the defendants have encroached over the piece of land belonging to the plaintiff and have unauthorisedly raised the wall. On such allegations, directed against both the defendants, there was no occasion for the Trial Court to order deletion of the name of defendant-petitioner No.2 from the array of parties. 10. However, so far the order dated 03.11.2008 is concerned, this Court is unable to approve the same. It appears that the learned Trial Court has taken too rigid and too strict a view of the matter. The application under Order I Rule 10 CPC was moved on the first date of appearance of the defendants i.e., 27.11.2007. The said application itself came to be decided only on 21.04.2008. It appears that the learned Trial Court has taken too rigid and too strict a view of the matter. The application under Order I Rule 10 CPC was moved on the first date of appearance of the defendants i.e., 27.11.2007. The said application itself came to be decided only on 21.04.2008. The next date after 21.04.2008 was 28.05.2008 and indisputably, the written statement was filed on 28.05.2008, albeit after drawing of the order-4 sheet by the Trial Court. In any case, the written statement was definitely filed before any further progress in the suit. 11. Looking to the nature of dispute between the adjoining neighbours regarding 10' x 60' strip of land between their plots, taking of the written statement on record would have served the cause of justice without causing any prejudice to the plaintiff. In the totality of circumstances, this Court is of opinion that interest of justice shall be served by setting aside the order dated 03.11.2008 and directing the Trial Court to proceed further after taking the written statement on record. 12. Accordingly, this writ petition is partly allowed to the extent indicated above; the order dated 03.11.2008 is set aside; and the written statement already filed is ordered to be taken on record. The Trial Court shall now be expected to proceed with the matter expeditiously and in accordance with law.Petition Partly Allowed. *******