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2014 DIGILAW 2313 (DEL)

Girija Devi v. Madan Kumar

2014-08-29

VALMIKI J.MEHTA

body2014
JUDGMENT : Valmiki J. Mehta, J. (Oral):-- 1. Mr. V.S. Pandey, Advocate, original counsel for respondent No. 1 is discharged as the new counsel Mr. Arvind Kumar Jha, Advocate. appears for Respondent No. 1. 2. This petition under Article 227 of the Constitution of India impugns two orders. The first order dated 1.11.2012 and the second order dated 21.11.2012. By the first order dated 1.11.2012, application filed by the plaintiff/petitioner to take off the record the written statement of defendant No. 2 has been dismissed. By the second order, the application for review of the order dated 1.11.2012 has been dismissed. 3. The case of the petitioner/plaintiff is that the written statement filed on record of the defendant No. 2 should be taken off the record because besides the thumb impression appearing on the written statement it is written “RTI of Smt. Girja Devi” and Smt. Girja Devi is the plaintiff and not the defendant No. 2. 4. Trial court notes that obviously the mentioning of the expression “RTI of Smt. Girja Devi” is a typing mistake because defendant No. 2 is Smt. Janki Devi. Therefore, written statement actually was of Smt. Janki Devi and there was only a clerical mistake of writing the thumb impression of Smt. Janki Devi to be of Smt. Girja Devi/plaintiff, but, the same cannot make the written statement as having signed by the plaintiff/petitioner and not by the defendant No. 2. Trial court also notes that the objection has been taken after the death of defendant No. 2, and after the legal heirs of defendant No. 2 were substituted on an application which was not opposed by the petitioner/plaintiff. The relevant observations of the trial court in the impugned order dated 1.11.2012 read as under:- “Written statement filed on behalf of defendant No. 2 bears a thumb impression but in the column it is mentioned that it is RTI of Girja Devi. It is pertinent to mention there that defendant No. 2 died during the proceedings of the suit and the LRs of defendant No. 2 were also impleaded vide order dated 01.4.2010 passed by the Ld. Predecessor of this court. Raising an objection at this stage when the defendant No. 2 is not alive seems meritless. It is pertinent to mention there that defendant No. 2 died during the proceedings of the suit and the LRs of defendant No. 2 were also impleaded vide order dated 01.4.2010 passed by the Ld. Predecessor of this court. Raising an objection at this stage when the defendant No. 2 is not alive seems meritless. The court cannot verify whether the thumb impression appearing on the written statement of defendant No. 2 is of defendant No. 2 only and RTI of Smt. Girja Devi was mentioned inadvertently. The court is inclined to accept the contention of defendant No. 2 that the mentioning of RTI of Smt. Girja Devi besides thumb impression appearing on written statement of defendant No. 2 is an inadvertent mistake due to the reason then defendant No. 2 would have not gained anything by putting a thumb impression of plaintiff instead of thumb impression of defendant No. 2 on the written statement. The courts are not made for punishing illiterate parties for mistake. If a strict and technical view is taken at this stage that will effect the stand of defendant No. 2 in the present suit irreparably. Further it is pertinent to mention here that application under order 22 rule 4 CPC for impleading defendant No. 2 was allowed on no objection of Ld. Counsel for plaintiff. In view of this discussion, and in order to decide the matter on merits rather on technicalities the present application is hereby dismissed.” 5. In view of the above, the application to strike off the written statement of defendant No. 2 was rightly dismissed by the trial court. There is no merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs. 6. Costs of Rs. 5000/- imposed vide the order dated 8.7.2014 of this Court is waived.