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2012 DIGILAW 793 (HP)

Champa Rounta v. Nirmal

2012-11-05

KULDIP SINGH

body2012
Judgment Kuldip Singh, J. This petition under Article 227 of the Constitution of India has been filed for quashing order dated 7.12.2011 passed by Civil Judge( Jr. Div.), Court No.IV, Shimla in Case No.189-1 of 11/09. 2. The facts in brief are that petitioner had filed a suit for permanent prohibitory injunction against respondents. In the suit, the petitioner had impleaded six defendants. On 17.6.2005, the trial Court on the application of petitioner ordered that written statement filed by defendants No.1,3 and 4 be taken off the record. The defendants No.1, 3, 4 and 5 have filed joint written statement, therefore, under law it would mean that defendants No.1,3 and 4 have not filed written statement. 3. On 16.8.2005 the trial Court ordered deletion of name of defendant No.2 Smt. Swaran Khanna. On 1.1.2011 (wrongly written 1.1.2010 in the order sheet of the trial Court) none appeared on behalf of defendants No.1 to 5 and they were proceeded exparte. On 28.3.2011 the evidence of the plaintiff was ordered to be closed by the order of the Court and the suit was fixed for evidence of defendant No.6 on 25.4.2011. 4. On 29.7.2011 an application was filed for setting aside exparte order dated 1.1.2011 by defendants No.1, 3 and 5. This application was dismissed on 11.11.2011 and the case was ordered to be listed on 16.11.2011. The case was taken on 19.11.2011, 23.11.2011, 26.11.2011(the Presiding Officer was on leave) and on 29.11.2011. 5. On 7.12.2011 the trial Court has passed the following order:- “Heard. Record perused. Defendants No.1,3 & 5 had joined proceedings on 29.7.11 and had moved application u/o 9 rule 7 CPC for setting aside order dated 1.1.2011 vide which they were proceeded against exparte which did not find favour of the Court and was dismissed on 11.11.2011. Perusal of record shows that written statement of defendants No.1, 3 & 4 was ordered to be taken of record vide order dated 17.6.2005. Since defendant No.5 had filed written statement and had joined proceedings on 29.7.11 when the case was still listed for evidence of defendants, he can participate in later proceedings and can lead evidence. Reliance placed on Badimeni Pochaiah and others, Appellants Vs. Gatla Akkapalli and others, Respondents, AIR 1992 Andhra Pradesh, 42. In view of this be listed for evidence on behalf of defendant No.5 on 4.1.2012”. 6. Reliance placed on Badimeni Pochaiah and others, Appellants Vs. Gatla Akkapalli and others, Respondents, AIR 1992 Andhra Pradesh, 42. In view of this be listed for evidence on behalf of defendant No.5 on 4.1.2012”. 6. The order dated 7.12.2011 has been assailed in the petition on the grounds that the same is wrong and illegal. The trial Court has erred in fixing the evidence of defendant No.5, the suit should have been fixed for arguments. The defendant No.5 has no specific defence in the suit. The defendant No.5 has taken the stand that he has no concern with the suit property. He has been wrongly impleaded in the suit. The Court below has erred in allowing defendant No.5 to lead evidence. 7. Heard and perused the record. In the order dated 17.6.2005, it has been observed by the Court below that joint written statement filed by defendants No.1,3,4 and 5 would mean that defendants No.1,3 and 4 have not filed written statement. The written statement of defendants No.1,3 and 4 was ordered to be taken off record. The defendants No.1 to 5 were proceeded exparte on 1.1.2011. 8. The learned counsel for the defendant No.6 closed the evidence on 29.7.2011 but on 29.7.2011 defendants No.1 to 5 filed an application for setting aside order dated 1.1.2011. In the application, the prayer was also made to produce evidence. This application was rejected on 11.11.2011. Thereafter the case was fixed on several dates but on 7.12.2011 the Court below of his own without any application on behalf of defendants No.1 to 5 fixed the suit for evidence of defendant No.5 on the grounds that written statement of defendant No.5 is on record, he can participate in the proceedings and lead evidence even if exparte order dated 1.1.2011 has not been set aside against him. 9. On 11.11.2011 at the time of dismissing application for setting aside exparte order dated 1.1.2011 of defendants No.1 to 5 the Court below has observed that from the conduct of the applicants it is clear that same is malafide. The case was to be listed for arguments as evidence of contesting defendant No.6 was closed. In the application dated 29.7.2011, a prayer for setting aside exparte order dated 1.1.2011 and for leading evidence was made. The case was to be listed for arguments as evidence of contesting defendant No.6 was closed. In the application dated 29.7.2011, a prayer for setting aside exparte order dated 1.1.2011 and for leading evidence was made. The Court below while dismissing application has observed that there were no grounds to allow the application and therefore, the application was dismissed. In other words, not only the prayer of the exparte order dated 1.1.2011 was rejected but the prayer of defendants No.1 to 5 for leading evidence was also rejected. 10. There was no application of defendants No.1 to 5 or defendant No.5 for reviewing the order dated 11.11.2011 nor it emerges from the order dated 7.12.2011 that the Court below found such error in the order dated 11.11.2011 which required review suo motu. The case was taken up on 7.12.2011. From the order dated 7.12.2011, it does not appear that at any time on 7.12.2011 or prior to 7.12.2011 the Court below had shown his intention to review the order dated 11.11.2011 nor any notice to this effect was given to petitioner. Once the prayer of defendants No. 1 to 5 in the application dated 29.7.2011 to produce evidence was not allowed in the order dated 11.11.2011, it can be safely presumed that such prayer was rejected by the Court below. In these circumstances, the Court below could not review the order dated 11.11.2011 and permit the defendant No.5 to lead evidence. The order dated 7.12.2011 is not sustainable. 11. In view of above, the petition is allowed. The order dated 7.12.2011 is set aside. CMP No.1798 of 2011 is also disposed of in view of disposal of the main petition. The parties through their counsel are directed to appear before the trial Court on 19.11.2012. The Record of the trial Court be sent back immediately, so as to reach before the date fixed.