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2018 DIGILAW 544 (HP)

Pramila Devi v. Bhupa Ram

2018-04-04

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition is maintained by the petitioner under Article 227 of the Constitution of India, against the order dated 04.07.2016, passed by the learned Civil Judge (Sr. Division) Court No.1, Ghumarwin, District Bilaspur, (H.P.), in Civil Suit No.158/01 of 2015, with a prayer to set aside the impugned order and to allow the present petition. 2. Briefly stating the facts giving rise to the present petition are that the respondent, who was the plaintiff before the Court below (hereinafter to be called as “the respondent”) has filed a suit under Section 37 of the Specific Relief Act for permanent injunction restraining the defendant (hereinafter to be referred as “the petitioner”) from causing any interference by digging the land, raising any construction, occupying any part, cutting and removing trees, grass and harvest and also from changing the nature of the land measuring 5-6 bighas comprised in Khasra No.204, 111 Kita-2 No. Khata/Khatauni 31/32, situated at village Makri, Pargna Baseh, Tehsil Jhandutta, District Bilaspur, (H.P.). The petitioner has further alleged that he is in exclusive possession over the suit land. The defendant is stranger to the land in dispute and he has got no right, title and interest in any manner whatsoever over any part of the suit land and is liable to be restrained from causing any interference. 3. It has been alleged that earlier to this suit, the respondent/plaintiff also filed suit against the husband of the petitioner/defendant and after the death of the husband, the respondent/plaintiff filed the present suit. It has been alleged that the petitioner/defendant is a rustic villager and illiterate lady having no knowledge of technicalities of law as she could not file written statement within specific period due to the reason that after the death of her husband, the petitioner/defendant remained ill due to the shock of the sudden and untimely death of her husband. 4. It has been alleged that the abovementioned suit was listed before the learned Court below on 04.7.2016, on which date the counsel of the petitioner/defendant sought time to file written statement as the written statement was ready, but as the petitioner/defendant could not come to attend the Court and it was to be signed by her, as she was ill. However, the learned Civil Judge(Sr. Division), Ghumarwin had been pleased to close the opportunity to file written statement. 5. However, the learned Civil Judge(Sr. Division), Ghumarwin had been pleased to close the opportunity to file written statement. 5. It has been alleged that the learned Civil Judge (Sr. Division) has wrongly and arbitrarily closed the opportunity to file written statement, whereas the written statement was ready in all respects, but it was to be signed by the petitioner/defendant. 6. It has been submitted that the learned Court below in a very hastily manner has wrongly passed the order dated 04.7.2016, whereas, the respondent/plaintiff has not examined his witness even on 05.11.2016 and 28.4.2017 and the case was listed for 04.9.2017. 7. It has been alleged that in order to substantial justice, the written statement is necessary and the learned Civil Judge (Sr. Division), Ghumarwin should have granted short time to file written statement, as the petitioner/defendant was not keeping well and due to this reason she could not attend the Court and the written statement could not be filed on 04.7.2016, though it was ready. 8. It has been alleged that the learned Trial Court has gravely erred in law in closing the opportunity to file written statement after coming to the conclusion that sufficient opportunity is granted to the petitioner/defendant to file written statement, without going into the genuineness of the request of the counsel for the petitioner/defendant submitting that the petitioner/defendant is ill and could not come to the Court and written statement would be filed on the next date. It has been alleged that the learned Court below has failed to appreciate that the closing of the opportunity to file written statement of the defendant has a bearing on the ultimate decision of the suit and which if not allowed, grave injustice will be caused to the petitioner/defendant. 9. It has been submitted that the learned Court below has also gravely erred while rejecting the requests of the counsel for the petitioner/defendant to grant one opportunity for filing written statement, which is essential in order to adjudicate the suit properly and impart substantial justice to the parties. It has been submitted that the learned Court below has acted arbitrarily. 10. I have heard the learned counsel appearing for the petitioner. However none has appeared for the respondent, though served. I have also gone through the record carefully. 11. It has been submitted that the learned Court below has acted arbitrarily. 10. I have heard the learned counsel appearing for the petitioner. However none has appeared for the respondent, though served. I have also gone through the record carefully. 11. Learned counsel appearing for the petitioner has argued that the learned Court below should have granted one more opportunity and since the petitioner/defendant was not feeling well and could not attend the Court and sign the written statement, the order of the learned Court below, by not granting an opportunity to the petitioner/defendant for filing the written statement is unjust and the present petition may be allowed in the interest of justice and fair play and necessary directions may be issued to the learned Trial Court to grant an opportunity to the petitioner/defendant for filing written statement. 12. In view of the submissions made hereinabove and after taking into consideration the fact that the petitioner/defendant was not keeping well and could not sign the written statement and also could not attend the Court below and could not sign the written, as well as this fact was brought to the notice of the learned Court below, but despite request made by the learned counsel for the petitioner/defendant, the petitioner/defendant has not been granted opportunity to file written statement, this Court finds that the interest of justice will met in case the order of the Court below is set aside with a specific direction to the Court below to decide the main grievance of the petitioner/defendant in accordance with law applicable. So, the present petition deserves to be allowed and one more opportunity to file written statement is required to be granted to the petitioner/ defendant. 13. Resultantly, the present petition is allowed and the order dated 04.07.2016, passed by the Civil Judge (Sr. Division), Ghumarwin, District Bilaspur, H.P., is set aside and learned Court below is directed to grant one more opportunity to the petitioner/defendant to file written statement. Petitioner to appear before the learned Court below on 21.04.2018. 14. In view of the aforesaid terms, the petition, so also the pending application(s), if any, shall stand(s) disposed of.