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2015 DIGILAW 382 (ALL)

Raju Jaiswal v. Ravi Agrawal

2015-02-25

RAN VIJAI SINGH

body2015
JUDGMENT Ran Vijai Singh, J. 1. Heard Sri B.D. Mandhyan, learned Senior Counsel assisted by Sri V.K. Singh and Sri Anshu Chaudhary, learned Counsel for the petitioner and Sri U.N. Sharma, learned Senior Counsel assisted by Sri Sandeep Singh, learned Counsel appearing for Sri Ravi Agrawal, the power of attorney holder of the respondents. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 11.4.2012 passed by Judge, Small Causes Court in SCC suit No. 33/2001 (Ravi Agrawal v. Om Prakash Jaiswal) and order dated 22.11.2014 passed by In-charge, District Judge, Allahabad in revision No. 239 of 2014 (Om Prakash Jaiswal v. Ravi Agrawal). 2. Vide order dated 11.4.2012, the petitioner's application No. 34-C for accepting the written statement by modifying the order dated 19.10.2011 was rejected, whereas by the subsequent order dated 22.11.2014, the revision filed by the petitioner against the order dated 11.4.2012 has also been dismissed. 3. The facts giving rise to this case are that the respondent herein filed SCC suit No. 33/2001 (Ravi Agrawal v. Om Prakash Jaiswal), before the Judge, Small Causes Court for ejectment of the petitioner's father on the ground of default in payment of rent and sub-letting, in the year 2001. In the suit, the petitioner herein filed an application (20-C) under section 23 of the Provincial Small Causes Courts Act, 1887 (in short, 'the Act') for returning the plaint before the Civil Court, as the question of title was involved and the defendant-petitioner had already filed a suit for declaration of his title being Original Suit No. 648 of 2000 (Om Prakash Jaiswal v. Ravi Agarwal and others) in the Court of Civil Judge (Senior Division), Allahabad, in which the respondents, herein, have already filed written statement. 4. From the perusal of the order sheet, it appears that the petitioner's application No. 20-C filed under section 23 of the Act could not be disposed of for about 10 years for various reasons, i.e., due to strike of lawyers, transfer of case before various Courts, etc. However, the aforesaid application was dismissed in default on 27.8.2011. 4. From the perusal of the order sheet, it appears that the petitioner's application No. 20-C filed under section 23 of the Act could not be disposed of for about 10 years for various reasons, i.e., due to strike of lawyers, transfer of case before various Courts, etc. However, the aforesaid application was dismissed in default on 27.8.2011. The petitioner herein, for reasons best known to him, has not pursued the aforesaid application and when the case was listed next on 21.9.2011, since the written statement was not filed, an adjournment was sought by the petitioner, which was rejected and the opportunity of filing written statement was closed. Thereafter, the petitioner herein filed another application for recall of the aforesaid order and that application was allowed vide order dated 19.10.2011 on payment of  Rs. 50/- as cost and the next date was fixed for 15.11.2011, but no written statement was filed and ultimately, the opportunity to file written statement was further closed on 15.11.2011. 5. It is stated in paragraph 11 of the writ petition that the petitioner, being an old crippled man of 84 years, was suffering from chronic diabetes and confined to bed for about two months, therefore, he could not file the written statement and hence, moved an application on 10.1.2012 to accept the written statement. This application was rejected by the learned Court below. 6. Learned Counsel for the petitioner has contended that the Court below ought to have allowed this application considering the petitioner's ill health and suffering. Aggrieved petitioner has filed revision before the learned District Judge, Allahabad against the order of rejection, but that too was dismissed on 21.11.2014 without taking into account the helplessness of the petitioner to file written statement because of ill health. 7. Sri U.N. Sharma, learned senior Counsel appearing for the contesting respondent placing reliance upon the judgment of the Hon'ble Apex Court in Kailash v. Nanhku and others 2005 (1) ARC 861, has submitted that prayer of extension of time made by the defendants for filing statement should not be granted just a matter of routine and merely for the asking when the period of 90 days has expired. In his submissions, in this case, a long time has elapsed and the petitioner has not filed written statement, therefore, the Court below has rightly rejected the petitioner's application for extension of time for filing the written statement. In his submissions, in this case, a long time has elapsed and the petitioner has not filed written statement, therefore, the Court below has rightly rejected the petitioner's application for extension of time for filing the written statement. 8. Learned Counsel for the petitioner has contended that earlier the written statement could not be filed due to the pendency of the application filed under section23 of the Act and that was not opposed by the respondent pressing the Court to proceed with the matter without disposing of the application (20-C) and after dismissal of the petitioner's application, the petitioner fell ill and could not file the written statement within time allowed in the Court below. He has further submitted that because of long illness, the defendant (father of the petitioner) died during the pendency of the revision, before the learned District Judge, filed against the order dated 11.4.2012 rejecting the petitioner's application for accepting the written statement. The Court below has rejected the petitioner's application mainly on two grounds; (1) the petitioner has not annexed the medical certificates regarding his illness while praying for extension of time; and (2) he failed to deposit the cost imposed by the Court below for accepting the written statement. The Hon'ble Apex Court in sub-para V of Paragraph 46 of the judgment in the case of Kailash (supra) has observed as under: "(v).......Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. 9. Considering the aforesaid observation made by the Hon'ble Apex Court and looking into the facts and circumstances of this case, particularly, the death of the father of the petitioner (the defendant), during the pendency of revision, because of his long illness and considering the fact that in case right of filing of written statement is closed, grave injustice would be caused to the petitioner, I am of the view that at least, the Revisional Court should have considered this aspect of the matter while dismissing the revision filed by the petitioner and in not doing so, it has fallen in error by confirming the order of the Court below closing the opportunity of filing written statement. In my opinion the facts of this case, qualify the norms under which time for filing the written statement can be extended as observed by the Apex Court in the case of Kailash (supra). I find it appropriate to grant one more opportunity to the petitioner for filing written statement. 10. However, the inconvenience caused to the plaintiff/respondent No. 5 for the lapse on the part of the petitioner in not filing the written statement, cannot be brushed aside and it requires to be compensated, therefore, on payment of a cost of  Rs. 10,000/- to the contesting respondents (plaintiffs), personally or through Counsel, by the next date fixed, before the Court below, i.e., 3.3.2015, as informed by the learned Counsel for the parties, the petitioner is granted two weeks further time to file his written statement. 11. In view of the foregoing discussions, the writ petition succeeds and is allowed. The impugned order dated 11.4.2012 passed by Judge, Small Causes Court in SCC suit No. 33/2001 (Ravi Agrawal v. Om Prakash Jaiswal) and order dated 22.11.2014 passed by In-charge, District Judge, Allahabad in revision No. 239 of 2014 (Om Prakash Jaiswal v. Ravi Agrawal) are hereby quashed. Considering the pendency of the case for about 14 years before the Court below, it is observed that the suit itself may be decided expeditiously in accordance with law, after hearing all concerned, without granting any unnecessary adjournments to the learned Counsel for the parties. In case any adjournment is sought for, that may be granted only after imposing cost of not less than  Rs. 500/- per adjournment upon the party seeking adjournment with the direction to deposit the cost by the next date fixed. In case of default in payment of cost, the participation of the defaulting party in the further proceeding of the suit shall be closed and the suit shall be decided. However, the Court below on its own discretion may extend the date of deposit upto the next date fixed, in the event of failure of the deposit of cost as earlier directed by the Court.