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2016 DIGILAW 586 (RAJ)

Jakir Khan v. Oma Ram

2016-04-27

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioners aggrieved against the order dated 2/7/2015 passed by the Additional District Judge No. 1, Jodhpur Metropolitan, whereby, the application filed by the petitioners under Section 151 CPC has been rejected. 2. The respondents filed a suit for specific performance of contract and permanent injunction. The petitioners put in appearance and counsel appearing for the petitioners sought several adjournments; ultimately the opportunity to file written statement was closed. Thereafter, on two occasions time was sought for cross examination of plaintiffs' witnesses, who were present and, when on third occasion on 2/7/2014, the counsel did not appear, the opportunity to cross examine two witnesses, who were present on the said date, was closed and the matter was fixed for cross examination of other witnesses. However, on the margin of the order sheet, 'No Instruction' along with signature of the counsel for the petitioners was indicated and the trial court on noticing the said aspect on 18/9/2014 that the counsel had pleaded 'no instruction' on 2/7/2014, directed issuance of the notices to the petitioners. 3. The petitioners appeared pursuant to the notices and also filed the writ petition before this Court inter alia seeking setting aside of the order passed by the trial court closing their written statement and closing the cross examination inter alia on the ground that their counsel did not inform them about the development in the suit, which resulted in the said state of affairs. The writ petition was not entertained by this Court and petitioners were left free to approach the trial court by filing application. 4. Pursuant to the order passed by the High Court, the present application was filed by the petitioners along with the written statement to the plaint. The application was opposed by the plaintiffs & inter alia it was stated that one of the defendants was present on all the dates and the defendants were well aware of the proceedings in the suit, the application being malafide, deserved to be dismissed. 5. The application was opposed by the plaintiffs & inter alia it was stated that one of the defendants was present on all the dates and the defendants were well aware of the proceedings in the suit, the application being malafide, deserved to be dismissed. 5. The trial court after hearing the parties, though came to the conclusion that the order dated 2/7/2014, which indicated non appearance of the counsel, also bears an endorsement 'No Instruction' on the same date, doubted that the said endorsement was made on 2/7/2014 on account of the contents of the order sheet and based on the fact that the petitioners were grossly negligent, dismissed the application filed by the petitioners and directed placing of the written statement in Part 'D'. 6. It is submitted by the learned counsel for the petitioners that the trial court committed an error in dismissing the application filed by the petitioners inasmuch as from the order sheets and the sequence of events it is apparent that on 2/7/2014, 'No Instructions' were pleaded and, where after, notices were ordered to be issued on 18/9/2014; the trial court without even holding an inquiry as to whether the order sheet of the said date was wrongly drawn or the endorsement of 'No Instruction' was subsequently made, has reached to the conclusion without any basis. It is submitted that the entire sequence of events clearly indicate that the petitioners were not aware of the fact that repeated adjournments were being sought by their counsel for filing written statement and though the petitioners were regularly in touch with the counsel, they were never called upon or informed about the requirement of filing of written statement and the fact that the written statement has already been closed and that the cross examination of two witnesses has also been closed and it is only when the notices were received from the Court that they became aware of the said state of affairs. It is submitted that the matter involves the property of the petitioners and, therefore, they may be granted an opportunity to contest the suit. 7. It is submitted that the matter involves the property of the petitioners and, therefore, they may be granted an opportunity to contest the suit. 7. Learned counsel for the respondents vehemently opposed the submissions and it was submitted that the entire sequence of events, which are evident from the order sheets, it is apparent that despite grant of repeated opportunities, the written statement was not filed, the witnesses were not cross examined and the trial court was left with no alternative but to close the written statement as well as cross examination. The order sheet dated 2/7/2014 is clear and categorical and there was no reason for the court to record the said aspect if the counsel had recorded 'No Instructions' on the margin of the said order sheet and, therefore, the entire sequence of events clearly smacks of mala fides; in reply to the application, the respondents clearly indicated that one of the defendants was present on all the dates along with the counsel and, therefore, the pleading that they were not aware of the state of affairs is baseless. It was prayed that the writ petition be dismissed with costs. 8. I have considered the submissions made by the learned counsel for the parties and have perused the material available on record. 9. From the order sheets it is apparent that after grant of repeated adjournments from 8/9/2013, the written statement was closed on 6/3/2014 by the trial court and, thereafter, on two occasions when the plaintiffs' witnesses were present, they were not cross examined and on 2/7/2014, the following order sheet was drawn by the trial court :- 02-07-2014 odhy oknh mi] xokg vksekjku] fVdejke mi0 vksekjke fVdekjke odhy izfroknh dks ckgj vkokts fnyokbZ ijUrq izfroknh@odhy izfroknh mi0 ugha iwoZ is'kh ij Hkh vksekjke fVdekjke mi0 Fks ijUrq odhy izfroknh us ftjg gsrq le; pkgus ij xokg dks ikcUn fd;k ijUrq vkt vc 3 PM gks pqds gSa ijUrq odhy izfroknh mi0 ugha gks jgs gS vr% odhy izfroknh dk xokg vksekjke] fVdekjke ls ftjg dk volj cUn fd;k tkrk gSA xokgksa dks :[klr fd;kA odhy oknh vkbUnk vU; lk{k ds 'kiFk i= is'k djsa okLrs lk{; oknh fnukad 25-07-2014 dks is'k gksA No instruction gLrk{kj 10. On the margin of the order sheet 'No Instruction' along with the signatures of the counsel is also available. On the margin of the order sheet 'No Instruction' along with the signatures of the counsel is also available. From the contents of the order sheet dated 2/7/2014 it is apparent that the counsel was not present when the order sheet was drawn and the endorsement which has been made on the margin of the order sheet appears to have been made subsequently. 11. The very fact that the endorsement of 'No Instruction' could be made subsequent to the passing of the order by the court, clearly reflects the attitude & conduct of the counsel which gives credence to the plea raised by the petitioners that they were not informed about the requirement of filing of written statement and that the same was closed. 12. The order sheet dated 18/9/2014 where the court noticed the fact that 'No Instruction' was pleaded on 2/7/2014, appears to have been written in routine without noticing the contents of the order sheet dated 2/7/2014. However, as the counsel in any case was not appearing, the court was justified in issuing notices to the defendants and once the defendants chose to appear and along with the application filed the written statement, looking to the entire sequence of events and in the fitness of things, should have been taken on record and the plaintiffs could have been compensated by way of costs. The denial of the defence to contest and defend the suit, would essentially be against the principles of natural justice and likely to deprive the petitioners of their property without fair trial. 13. In view of the above discussion, the writ petition of the petitioners is allowed, the impugned order dated 2/7/2015 is set aside, the application filed by the petitioners under Section 151 CPC is allowed and the written statement filed by them is taken record on paying a cost of Rs. 20,000/- to the plaintiffs. The payment of cost would be prerequisite for the court to proceed further in the matter and in case the petitioners fail to deposit the cost by the next date, it shall be deemed that the present writ petition has been dismissed by this Court. 14. Looking to the fact that the suit has protracted for long, the trial court is directed to deal with the suit as expeditiously as possible.