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2013 DIGILAW 160 (RAJ)

LR’s of Roopa Ram @ Roop Chand v. Kanwari Devi

2013-01-20

ARUN BHANSALI

body2013
JUDGMENT 1. - This writ petition has been filed by the petitioner defendant, whereby, his application under Order 14 Rule 5 C.P.C. read with Section 151 C.P.C. was rejected by the learned trial Court on coming to the conclusion that his written statement was not on record and, therefore, there is no requirement to frame any issue as proposed by the petitioner. 2. The brief facts of the case are that the plaintiff Man Mal filed a suit for possession against defendant Mool Chand. The suit was filed by the plaintiff claiming himself to be the Karta of Hindu undivided family. A written statement was filed by Mool Chand and an objection was raised that the plaintiff cannot file the suit without obtaining succession certificate. 3. On the pleadings of the parties issues were framed in the case by the learned trial Court. It appears that the plaintiff Man Mal died during the pendency of the suit and his legal representatives 1/1 to 1/7 were impeaded as plaintiffs and they filed amended plaint. In the amended plaint it was claimed that late Man Mal was Karta of Hindu undivided family and said Man Mal had right to institute the suit for his benefit and for the benefit of the other family members and after his death the newly substituted plaintiffs being successors of man Mal were entitled to continue the suit. It appears that the sole defendant Mool Chand also died and in his place his legal representatives were impleaded as parties and Roop Chand S/o Mool Chand filed a written statement again questioning the locus of the plaintiffs in maintaining the said suit. A replication was filed by the plaintiffs to the said written statement filed by Roop Chand S/o Moot Chand and it was stated that after the death of man Mal the joint family disintegrated and in partition the suit premises came to the share of the plaintiffs 1/1 to 1/7 and, therefore, they have right to prosecute the suit. 4. It appears that on 9.3.2006 the trial Court came to the conclusion that the written statement filed by Roop Chand taking additional plea asserting his own right, title and interest cannot be taken and directed that the written statement so filed by the legal representatives be struck off the file or be kept in part D. 5. 4. It appears that on 9.3.2006 the trial Court came to the conclusion that the written statement filed by Roop Chand taking additional plea asserting his own right, title and interest cannot be taken and directed that the written statement so filed by the legal representatives be struck off the file or be kept in part D. 5. Feeling aggrieved by the said order dated 9.3.2006, the present petitioner filed S.B. Civil Writ Petition No. 2063/2006, wherein, this Court on 1.6.2006 directed that the effect and operation of order dated 9.3.2006 shall remain stayed so far as the same related to striking out the written statement of the petitioner, but with the rider that the petitioner shall proceed with leading of the evidence and the Court shall proceed in the matter in accordance with law. Thereafter it appears that the said Writ Petition No. 2063/2006 was disposed of by this Court on 10.2.2010 by passing the order as under: "Learned counsel for the petitioner submits that in view of the interim Order dated 1.6.2006 passed by this Court allowing the trial to proceed on the basis of written statement of present petitioner-LR's of Mool Chand, the trial has virtually completed, however, the judgment is not being pronounced in view of the pendency of this writ petition. He submitted that challenge to striking off the additional pleadings by the present petition has now become in-fructuous but in view of the pendency of this writ petition the trial Court is not pronouncing the final judgment. Therefore, this writ petition may be disposed of with liberty to the trial Court to conclude the trial by pronouncing the judgment. Accordingly, this writ petition is disposed of by modifying the earlier order and permitting the trial Court to complete the trial and pronounce the final judgment." 6. Thereafter, it appears that the present application under Order 14 Rule 5 C.P.C. was filed by the petitioner seeking amendment of the issues and framing of additional issue and proposed 8 new issues besides the existing issues. 7. The learned trial Court after hearing the parties came to the conclusion that as the written statement of Roop Chand already stands struck off from the pleading and there does not appear any requirement to frame the proposed issues and without examining the merit/demerits of the requirement thereof dismissed the application under Order 14 Rule 5 C.P.C. 8. 7. The learned trial Court after hearing the parties came to the conclusion that as the written statement of Roop Chand already stands struck off from the pleading and there does not appear any requirement to frame the proposed issues and without examining the merit/demerits of the requirement thereof dismissed the application under Order 14 Rule 5 C.P.C. 8. 1 have heard learned counsel for the parties and perused the material placed on record. 9. It was submitted by the learned counsel for the petitioner that the learned trial Court committed grave error in construing the order dated 10.2.2010 passed by this Court disposing of the Writ Petition No. 2063/2006 to mean that no order has been passed by the Court to take the written statement on record, whereas, the Court had in fact noticed this aspect that in view of the interim order dated 1.6.2006 the . trial has virtually completed and permitted the trial Court to complete the trial and pronounce the final judgment necessarily means that the written statement was very much on record in view of the interim order passed by the Court on 1:6.2006 and putting any other interpretation to the order dated 10.2.2010 would result in grave injustice to the petitioner. It was also stated that the Court has wrongly observed that Roop Chand petitioner has not been examined when in fact he has already examined as witness in the case. It was prayed that the order impugned deserves to be quashed and set aside and the application filed by the petitioner under Order 14 Rule 5 C.P.C. deserves to be allowed. 10. On the other hand, learned counsel for the respondents-defendants opposed the prayer made by the petitioner. It was submitted that once the petitioner had made a submission before this Court on 10.2.2010 that his petition had become infructuous, there is no occasion for him to now claim that the order impugned in the said writ petition stands set aside and that his written statement is still on record. 11. The counsel placed reliance on the judgment of Hon'ble Supreme Court in the case of Union of India v. Narendra Singh, reported at (2005) 6 SCC 106 , wherein the Hon'ble Supreme Court held as under: "6. The expression infructuous means ineffective, unproductive and unfruitful. It is derived from the Latin word "fructus" (fruit). 11. The counsel placed reliance on the judgment of Hon'ble Supreme Court in the case of Union of India v. Narendra Singh, reported at (2005) 6 SCC 106 , wherein the Hon'ble Supreme Court held as under: "6. The expression infructuous means ineffective, unproductive and unfruitful. It is derived from the Latin word "fructus" (fruit). By implementing an order the challenge to the validity of the order is not wiped out and is not rendered redundant." 12. It was also stated by learned counsel that during the pendency of the suit the petitioner had moved an application under Order 6 Rule 5 C.P.C. read with Section 151 C.P.C. seeking particulars regarding status of the joint Hindu family and the averments made by late man Mal in his written statement and the said application was rejected vide order dated 4.8.1997 by the trial Court holding that the defendants were not entitled to place anything beyond what the original defendant Mool Chand had stated. The said order was questioned by filing S.B. Civil Writ Petition No. 853/1997. However, the same was dismissed in view of the amendment in the provisions of Sections 115 C.P.C. by this Court on 16.10.2003 and thereafter no writ petition seeking to challenge the order dated 4.8.1997 was filed and, therefore, also the petitioners are not entitled to raise any issue in this regard. 13. I have considered the rival submissions made by the learned counsel for the parties and have perused the material placed on record. 14. This Court vide order dated 1.6.2006 had specifically ordered for stay of operation and effect of order dated 9.3.2006 passed by the trial Court 'so far as it relates to striking out the written statement of the petitioner'. Thereafter, the final order dated 10.2.2010 was passed by this Court as quoted herein before. 15. 14. This Court vide order dated 1.6.2006 had specifically ordered for stay of operation and effect of order dated 9.3.2006 passed by the trial Court 'so far as it relates to striking out the written statement of the petitioner'. Thereafter, the final order dated 10.2.2010 was passed by this Court as quoted herein before. 15. A bare reading of the said order would reveal that a specific averment was made by learned counsel for the petitioner in presence of counsel for respondent that in view of the interim order dated 1.6.2006 passed by this Court 'allowing the trial to proceed on the basis of written statement of present petitioner-LR's of Mool Chand, the trial has virtually completed, however, the judgment is not being pronounced in view of the pendency of the writ petition.' The said statement by the learned counsel for the petitioner in the said writ petition No. 2063/2006 was very categorical and clear that the written statement filed by the LR's of Mool Chand was already on record in view of the interim order dated 1.6.2006 passed by the Court and the trial had been competed treating the said written statement on record. The further statement that the challenge to striking of the additional pleadings by the writ petition had become infructuous and making am prayer for disposal of the writ petition with liberty to the trial Court to conclude the trial by pronouncing the judgment and this Court disposing of the writ petition by modding the earlier order and permitting the trial Court to complete the trial and pronounce the judgment clearly meant that the order dated 1.6.2006 of staying the striking out of the written statement of the petitioner remained and petition was disposed of in the terms as indicated herein before. 16. The statement of counsel for the petitioner that the petition had become infructious has to be read in the context that the evidence of the parties during the said written statement on record is already complete and, therefore, the said petition has become infructuous. The said statement cannot be seen in the context as if the petitioner therein was seeking withdrawal of the writ petition which would have revived the order dated 9.3.2006 striking out the written statement of the petitioner. The said statement cannot be seen in the context as if the petitioner therein was seeking withdrawal of the writ petition which would have revived the order dated 9.3.2006 striking out the written statement of the petitioner. The over all reading of the orders dated 1.6.2006 and 10.2.2010 leads to an irresistible conclusion that the order dated 1.6.2006 staying striking out the written statement of the petitioner was made absolute by the order dated 10.2.2010 and any other interpretation put to the said order dated 10.2.2010 would be doing violence to the said order dated 10.2.2010 and would definitely result in unintended injury to the petitioner. 17. So far as the judgment cited by the learned counsel for the respondents in concerned, it is not doubt true that the expression used by the counsel on 10.2.2010 during hearing of the Writ Petition No. 2063/2006 would mean that the petition had become ineffective, unproductive and unfruitful. But the said statement has to be seen in the context as already discussed herein before. 18. The learned trial Court has not dilated on the application filed by the petitioner under Order 14 Rule 5 C.P.C. on merits and during the course of arguments before this Court the parties. also did not address arguments and on the merits of the application as such the trial Court has simply rejected the application on the ground of non-availability of the written statement of the applicant-petitioner. 19. The learned counsel for the petitioner fairly submitted that as the evidence has already been led by the parties, the petitioner does not intend to lead further evidence. 20. In that view of the matter, the writ petition is allowed. The order impugned dated 15.3.2011 (Annexure-10) is set aside and the matter is remanded back to the learned trial Court to decide the application filed by the petitioner under Order 14 Rule 5 C.P.C. on merits treating the written statement filed by the defendant No. 1/1 Roop Chand to be on record and replication thereof filed on behalf of the plaintiffs also to be on record. No costs.Petition allowed. *******