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2014 DIGILAW 1671 (RAJ)

Ballaram v. Vaidh Pushkardutt Joshi

2014-10-13

R.S.CHAUHAN

body2014
JUDGMENT : R.S. Chauhan, J. The petitioners have challenged the order dated 4.3.2006 passed by Addl. Civil Judge (Jr. Div.) No.2, Sikar, whereby the learned judge had closed the right to file the written statement of the petitioner-defendants. 2. Mr. Amit Singh Shekhawat, the learned counsel for the petitioners, has contended that immediately after the temporary injunction application was rejected by the learned trial court, the respondent-plaintiff filed an appeal before the First Appellate Court in 2001 itself. Thereafter the record of the case was called for by the First Appellate Court, which was not returned to the learned trial court till 29.1.2006. Therefore, for five years the written statement could not be filed by the petitioners. According to order dated 28.1.2006 only a last chance was granted to the petitioners to file their written statement by the next date, i.e. by 4.3.2006. Thus, according to the learned counsel ample opportunities were not given to the petitioners to file the written statement. Thus, their right to defend themselves has been denied by the learned Magistrate. 3. On the other hand Mr. Jai Raj Tantia, the learned counsel for the respondent, has vehemently contended that even if the record has been called for by the First Appellate Court, it did not prevent the petitioners from filing the written statement as a formal file is maintained by the learned trial court, and endless order-sheets were recorded. Thus according to him, ample opportunities have been given to the petitioners to submit their written statement. Thus, he has supported the impugned order. 4. Heard the learned counsel for the parties, and perused the order-sheets from 6.8.2001 till 4.3.2006. 5. It is, indeed, trite to state that a party has a right to defend its interest and rights before the learned trial court. A bare perusal of the order-sheet clearly reveals that immediately after rejection of the temporary injunction application, the record has been called for by the First Appellate Court. For five years the trial had come to a grinding halt. The record was not returned to the learned trial court till 28.1.2006. On the said date an opportunity was given to the petitioners to file their written statements. But for all practical purposes it was the first opportunity given to the petitioners to file their written statement. For five years the trial had come to a grinding halt. The record was not returned to the learned trial court till 28.1.2006. On the said date an opportunity was given to the petitioners to file their written statements. But for all practical purposes it was the first opportunity given to the petitioners to file their written statement. In catena of cases the Hon'ble Supreme Court has clearly held that Order 8, Rule 1 CPC is merely a directory provision and not a mandatory one. Therefore, ample opportunities should have been given to the petitioners to file their written statement. After all, to deny them an opportunity to file written statement is to close the doors of the court upon them. 6. For the reasons stated above, this petition is allowed. The order dated 4.3.2006 is quashed and set aside. The learned trial court is directed to give the petitioners an opportunity to submit their written statement within a period of one month from the date of the receipt of a certified copy of this judgment. Petition Allowed.