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2012 DIGILAW 55 (JK)

Bodh Raj v. Jeet Singh & Ors.

2012-02-17

MANSOOR AHMAD MIR

body2012
1. Through the medium of this writ petition the petitioner has sought quash-ment of order dated 17.01.2012 passed by Sub Judge, Kathua, in a civil suit titled as Bodh Raj v. Jeet Singh & others, whereby application moved by the plaintiff-petitioner herein for closing the rights of defendant-respondent no.3 herein to file the written statement in terms of Order 8 of Code of Civil Procedure (for short CPC) has been rejected, on the grounds taken in the petition. 2. Plaintiff-petitioner herein has filed a civil suit, titled as Bodh Raj v. Jeet Singh & others, which is pending in the Court of Sub Judge, Kathua. Defendants-respondent no.3 herein appeared and was directed to file written statement subject to depositing of costs, which he filed on 26.05.2011. 3. Plaintiff-petitioner herein moved an application before the trial court with a prayer that since defendant-respondent no.3 herein has failed to file the written statement before expiry of statutory period, therefore his right of filing the same be closed in terms of Order 8 of CPC. The trial court considered the matter and held that the defendants have already placed on record written statement in terms of order dated 25.05.2011 on the same date, accordingly rejected the application and directed for examination of the parties in terms of Order 10 CPC. Feeling aggrieved the plaintiff-petitioner herein has questioned the same by the medium of this petition. The writ petition on the face of it is not maintainable and merits to be dismissed. The trial court has passed the order in accordance with the provisions of Code of Civil Procedure and the same cannot said to be an order without jurisdiction or in excess of jurisdiction. The Apex Court in cases titled Shalini Shyam Shetty v. Rajendra Shankar Patil, 2010 AIR SCW 6387 and Kokkanda B. Poondacha & ors. v. K. D. Ganapathi & anr., AIR SCW 2011,1737 has held that invoking of writ or supervisory jurisdiction against any order is only permissible when subordinate court has acted without or in excess of jurisdiction not otherwise and the same view has been held by this court in cases OWP No. 1364/2011 titled Abdul Rehman Dar & ors. v. Showkat Ali Bhat & ors. 2011 (4) JKJ HC-334. and OWP No.69/2012 titled Ghulam Rasool Zargar v. State & ors. Thus the writ petition is not maintainable and the same is, accordingly, dismissed along with all CMPs.