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2012 DIGILAW 851 (HP)

Veena Gupta v. Kanwar Surinder Singh

2012-11-19

V.K.SHARMA

body2012
JUDGMENT By a consent order dated 27.12.2010, passed by the learned trial court, in an application under Order 22 Rule 10, Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (in short ‘CPC’), the petitioner herein, Smt. Veena Gupta was brought on record as a co-defendant, pursuant to acquisition of the respective interests of the original defendants, Babar Jang Singh and Tika Uday Singh in the disputed property. Thereafter, she moved an application under Section 151 CPC with the following prayers:- “(A) Allow the counsel for the applicant Mrs. Veena Gupta to address the Hon’ble Court on the aspect of filing of the written statement. (B) Fix the next date of hearing somewhere in February, so as to allow the counsel for the applicant in Delhi to effectively assist the Hon’ble Court on the above prayed aspect.” 3. A bare perusal of the averments set up in the above application and the prayer made thereunder would go to show that in essence, it was an application for adjournment for addressing arguments to assert the independent right of the newly substituted defendant, the petitioner herein. However, the application, which was orally resisted only on behalf of respondent No.1 herein, Kanwar Surinder Singh, who is the sole plaintiff before the learned trial court, the learned trial Judge has misconstrued the purport of the application and proceeded to decide the same, vide the impugned order dated 12.1.2011, which reads as under:- “Heard record perused. From the perusal of record it appears that vide order dated 27.12.2010, application under Order 22 Rule 10 CPC was allowed, whereby the name of current defendant No.2 was transposed in placed of defendants No.1 and 3. From the perusal of file it appears that defendants No.1 and 3 have filed written statement. Further, from the application U/O 22 Rule 10 the current defendant is transposed. The ld. Counsel for the plaintiff orally resisted and contested the application stating that vide order dated 27.12.2010 application under order 22 Rule 10 C.P.C. was allowed and now defendant No.2 filed the application merely to prolong the proceedings. When defendant No.2 had stepped into the shoes of another defendant he cannot be permitted to make a new defence. In view of my above discussion the application under Section 151 C.P.C. is dismissed and defendant No.2 is not allowed to amend the written statement. When defendant No.2 had stepped into the shoes of another defendant he cannot be permitted to make a new defence. In view of my above discussion the application under Section 151 C.P.C. is dismissed and defendant No.2 is not allowed to amend the written statement. Now to come up for DWs on taking steps within 3 days being exceptional last opportunity for 10.3.2011. DWs on the date fixed if not brought, the opportunity to lead DWs would be deemed to be closed by the order of the Court.” 3. In view of the above, the impugned order dated 12.1.2011 cannot be sustained and is accordingly set aside and the matter is remitted to the learned trial court for re-consideration of the aforesaid application and proceed further in the matter un-influenced by the earlier order dated 12.1.2011, which stands set aside in terms of this judgment and taking into consideration the legal position enunciated by the Hon’ble Supreme Court in (1) Government of Orissa vs. Ashok Transport Agency and Others, (2005) 1 Supreme Court Cases 536, wherein, vide para-11 of the report, it has been laid down as under:- “11. Thus, we are inclined to the view that the Corporation and the State of Orissa should have been impleaded in the suit prior to the decree on the terms of the Amalgamation Order. Learned counsel for the appellant submitted that the appellant only wanted an opportunity to defend the suit consistent with the stand adopted in the written statement filed by the defendant subject to any additional pleas that may be available to be raised by the appellant. Learned counsel for the appellant submitted that the appellant only wanted an opportunity to defend the suit consistent with the stand adopted in the written statement filed by the defendant subject to any additional pleas that may be available to be raised by the appellant. We think that in this case, the proper order to be passed, in the interests of justice is to accede to the plea of the appellant to give it a chance to defend the suit especially in view of the relevant clauses of the Amalgamation Order, 1991, by setting aside the orders impugned in this appeal and also by setting aside the ex parte decree and reviving the suit and by directing the trial court to try and dispose of the same afresh and in accordance with law, after bringing on record the Corporation, the Government of Orissa and TISCO, since the State had subsequently sold the assets to TISCO, and after giving the newly added defendants an opportunity to file their written statements, not inconsistent with the one already filed by the defendant. After giving of such an opportunity to the newly added defendants, it will be for that Court to proceed with the trial and disposal of the suit in accordance with law.” AND, (2) Sumtibai & Ors. vs. Paras Finance Co., AIR 2007, Supreme Court 3166. 4. The petition as also pending application (s), if any, stand disposed of in the above terms. As records of the learned trial Court have not been requisitioned, let a copy of this judgment be sent to the said Court forthwith for information and compliance.