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2013 DIGILAW 2763 (ALL)

Asha Ram v. District Judge Barabanki

2013-11-11

SATYENDRA SINGH CHAUHAN

body2013
JUDGMENT Satyendra Singh Chauhan, J. This writ petition has been filed for quashing of the orders dated 4.4.2009 and 18.9.2009 passed by the opposite parties no.1 and 2. 2. The facts, in short, are that a suit for permanent injunction was filed by opposite party no.3, on which summons were issued to the petitioners, but the summons could not be served and anyhow the petitioners came to know about the fact that a suit has been filed against them, then they put in their appearance on 3.2.2004 and made an application for grant of time for filing written statement. The next date was fixed in the case as 26.4.2004 and on the said date, Lawyers were on strike, so the next date was fixed as 20.7.2004. On 20.7.2004 the petitioners were given time to file written statement by 20.10.2004 and on 20.10.004 written statement was filed by the petitioners. Prior to the said date, an application under Order 8 Rule 5(2) of C.P.C. was moved by the opposite party no.3 and the said application has been allowed and the written statement filed by the petitioners has been rejected. Against the said order, a revision was preferred by the petitioners, which too was dismissed by the revisional court. Hence this petition. 3. Submission of counsel for the petitioners is that when the trial court itself has allowed time to the petitioners to file written statement upto 20.10.2004, then it was not permissible under law to reject the written statement of the petitioners by entertaining the application moved under Order 8 Rule 5(2) CPC by the opposite party no.3. The said application could have been entertained only after 20.10.2004. Once the time was granted to the petitioners to file written statement, the trial court has committed illegality in rejecting the written statement of the petitioners. The revisional court has also committed the same illegality in dismissing the revision. 4. Counsel for the opposite party no.3, on the other hand, has submitted that written statement was filed by the petitioners beyond 90 days and, therefore, the same has rightly been rejected. The opposite party no.3 was left with no option except to move an application under Order 8 Rule 5(2) CPC and the same has rightly been allowed by the trail court. Therefore, no illegality has been committed by the courts below. 5. The opposite party no.3 was left with no option except to move an application under Order 8 Rule 5(2) CPC and the same has rightly been allowed by the trail court. Therefore, no illegality has been committed by the courts below. 5. I have heard counsel for the parties and perused the record. 6. The suit proceeded after the same was filed by the opposite party no.3 and summons were issued. The summons could not be served upon the petitioners and anyhow the petitioners put in their appearance on 3.2.2004 and made an application for grant of time to file written statement. The next date was fixed in the case as 26.4.2004 and on the said date, Lawyers were on strike, as such the next date was fixed as 20.7.2004. On 20.7.2004 an order was passed by the trial court, whereby the petitioners were granted time to file written statement upto 20.10.2004. On 20.10.2004 written statement was filed by the petitioners. In the meantime, taking the benefits of Order 8 Rule 5 CPC, an application was moved by opposite party no.3 and the said application was entertained by the trial court. 7. The question is whether the said application could have been entertained by the trial court. It is to be noted that the trial court itself has granted time for filing written statement. Order 8 Rule 1 CPC specifically provides that in such a situation if the court is of the view to grant time, then reasons are to be recorded in writing and the reasons were manifest from the order dated 20.7.2004, but ignoring the said order, written statement filed by the petitioners has been rejected by the trial court. Therefore, the trial court as well as the revisional court have committed gross illegality in rejecting the written statement of the petitioners. 8. Writ petition is accordingly allowed and the orders dated 4.4.2009 and 18.9.2009 passed by the opposite parties no.1 and 2 are hereby quashed. The matter is remanded to the trial court is decide the case afresh in accordance with law after taking the written statement on record.