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2019 DIGILAW 1405 (HP)

Sulajeet Singh v. Kanshi Ram

2019-09-18

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 20.04.2019 passed by the Court of learned Senior Civil Judge, Shimla, in CMA No. 290 of 2019 and in CMA No. 226- 6 of 2018, vide which, learned Trial Court, while allowing the application filed by the defendants for extension of time for filing the written statement, dismissed the application filed by the plaintiff for striking off the defence of the defendants for not filing the written statement in time. 2. Brief facts necessary for the adjudication of the present petition are that the petitioners herein have filed a suit for declaration and injunction against the present respondents. This suit was initially filed before the Court of learned Civil Judge, Court No. 2, Rohroo, District Shimla, HP. The suit was instituted on 11.08.2017. After service, defendants appeared before the learned Court on 19.08.2017. On 21.08.2017, a request was made on behalf of the defendants before the learned Court below that they intended to file an application under Section 24 of the Code of Civil Procedure (hereinafter referred to as the 'Code' for short) for transfer of the case. Record demonstrates that an application under Section 151 of the Code for transfer of the case to the Court of learned District Judge, Shimla, was filed by the defendants before learned Civil Judge, Court No. 2, Rohroo, HP, which was dismissed on 19.09.2017 on the ground that power to transfer the case is vested with learned District Judge and the High Court under Section 24 of the Code. Record further demonstrates that simultaneously, an application under Section 24 of the Code for transfer of the case was also filed by the defendants before the Court of learned District Judge at Shimla. Record further demonstrates that on 23.6.2018, Court of learned Senior Civil Judge, Shimla passed an order, relevant part of which is quoted herein below:- "The present suit/case file has been received on dated 14.06.2018 alongwith copy of order dated 24.05.2018 passed in CMA No. 197-S/6 of 2017 titled as Sh. Sulajeet versus Sh. Khushi Ram and others passed by the Court of Ld. District Judge, Shimla, H.P. from the Court of Ld. Civil Judge Court No. II, Rohroo, Shimla, H.P. and it has been put up before me today by the Ahlmad concerned. Sulajeet versus Sh. Khushi Ram and others passed by the Court of Ld. District Judge, Shimla, H.P. from the Court of Ld. Civil Judge Court No. II, Rohroo, Shimla, H.P. and it has been put up before me today by the Ahlmad concerned. At this stage Sh. D.P. Chauhan, Advocate, has filed Power of Attorney on behalf of all the defendants which is placed on record. The perusal of the order dated 24.05.2018 passed by the Court of Ld. District Judge, Shimla, H.P. shows that the present suit/case file has been assigned to this Court. Therefore, the office to check and register and now, notice be issued to the plaintiffs returnable for 24.08.2018." 3. Thereafter, on 24.08.2018, the case was ordered to be listed by the said Court for 24.09.2018 for the filing of the written statement by the defendants. It is pertinent to mention that during the period the case was pending in the Court of learned Civil Judge, Court No.2, Rohroo, defendants had been appearing in the said Court in person or through attorney as they were not able to engage any Counsel because no Counsel at Rohroo was willing to represent them in the Court, purportedly on account of influence of the plaintiffs. 4. Be that as it may, thereafter defendants filed their written statement on 25.09.2018, as is evident from the record of the case. When the case was thereafter listed before the learned Court below on 28.11.2018, an application was filed by the petitioners herein under Section 148 read with Section 151 of the Code of Civil Procedure for striking off the defence of the defendants. On the said date, case was adjourned for filing reply to the said application for 01.01.2019. Thereafter, the case was listed on 14.01.2019 and on the said date, alongwith reply filed to the said application, defendants also filed an application under Section 148 of the Code of Civil Procedure for enlarging the time for filing the written statement. 5. These applications stand disposed of vide impugned order whereby the application filed by the plaintiffs/petitioners has been dismissed whereas that filed by the defendants/respondents has been allowed. 6. 5. These applications stand disposed of vide impugned order whereby the application filed by the plaintiffs/petitioners has been dismissed whereas that filed by the defendants/respondents has been allowed. 6. Learned Counsel for the petitioners has argued that the impugned order, vide which learned Trial Court dismissed the application filed by the petitioners for striking off the defence of the respondents, is not sustainable in the eyes of law because while dismissing the application filed by the petitioners, learned Trial Court erred in not appreciating that as there was considerable delay in filing the written statement, the defence of the respondents/defendants deserved to be struck off as taking written statement on record at a belated stage had caused a great prejudice to the plaintiffs. 7. On the other hand, learned Counsel for the respondents has argued that there was no infirmity with the order passed by learned Trial Court because there was no intentional delay on the part of the respondents in filing the written statement and the same could not be filed earlier as is also evident from the averments made in the application filed by them before the learned Trial Court under Section 148 of the Code of Civil Procedure for reasons beyond their control. 8. I have heard learned Counsel for the parties and also gone through the order under challenge as also the record of the case. 9. The reasoning assigned by the learned Court below while passing the impugned order is self speaking and is being quoted in extensio herein below:- "5. Perused case file carefully. The plaintiff had filed the present suit before the Ld. Civil Judge Court No. 2 Rohru and the defendants were summoned for 19.08.2017. The record reveals that on 19.08.2017 Advocate Sh. Bharat Bhushan appeared for the defendants by filing Memo of Appearance and case was adjourned to 21.08.2017 for filing P.O.A. and reply. On 21.08.2017 Sh. Bharat Bhushan appeared for defendants on the strength of GPA and stated at the bar that the defendants intend to move an application under Section 24 CPC for transfer of the case. Thereafter, the case was listed for further orders. The case file was received in this Court on 23.06.2018 after the disposal of transfer application by the Ld. District & Sessions Judge. On the said date P.O.A. was filed on behalf of the defendants by Advocate Sh. D.P. Chauhan. Thereafter, the case was listed for further orders. The case file was received in this Court on 23.06.2018 after the disposal of transfer application by the Ld. District & Sessions Judge. On the said date P.O.A. was filed on behalf of the defendants by Advocate Sh. D.P. Chauhan. Since, the plaintiffs were not present on the said date, therefore, the case was listed for notice to plaintiffs for 24.08.2018, whereafter it was listed for filing of written statement by the defendants. Vide order dated 28.11.2018, it was observed that written statement has already been filed by the defendants on 25.09.2018. On the same date, the plaintiffs moved the present application under Section 148 read with Section 151 CPC. The defendants filed reply to the said application on 14.01.2019 and also filed an application under Section 148 read with Section 151 CPC seeking enlargement of time for filing of the written statement. 6. Record also reveals that the GPA of the defendants Sh. Bharat Bhushan had filed a reply to the application under Order 39 rule 1 and 2 CPC on 21.08.2017 thereby disclosing intention to contest the matter. 7. It is evident from the record that the defendants had put appearance before the court of Ld. Civil Judge Court No. 2 Rohru and disclosed their intention to move an application for transfer of the case, and in fact such application was moved and the matter was transferred and assigned to the present Court. It also reveals that during the time when the matter was being heard by the Ld. Civil Judge Court No. 2 Rohru, no Advocate was engaged by the defendants and they appeared in person. It is the plea of the defendants that since the plaintiff No. 2 is a practicing Advocate at Rohru, therefore, none appeared on their behalf and they were forced to move a transfer application. Admittedly, no effect order was passed by Ld. Civil Judge Court No. 2 Rohru when the transfer application was pending before the Ld. District & Sessions Judge Shimla, H.P. As per the record an Advocate appeared on behalf of the defendants only on 23.06.2018 and the written statement was filed on 25.09.2018." 10. During the Course of arguments, learned Counsel for the petitioners could not demonstrate that findings so returned by the learned Court below were perverse findings and are not based on record. During the Course of arguments, learned Counsel for the petitioners could not demonstrate that findings so returned by the learned Court below were perverse findings and are not based on record. The reasonings assigned by the learned Trial Court as have been quoted herein above clearly demonstrate that the reason as to why written statement could not be filed by the defendants when the matter was pending at Rohroo was that plaintiff No.2 happens to be a practicing Lawyer at Rohroo and on this count, no practicing Lawyer at Rohroo appeared on behalf of the defendants. Defendants were forced to move the transfer application which was subsequently allowed by the Court of learned District Judge, Shimla and after the matter was transferred to other Court at Shimla, written statement was filed by the defendants. In these peculiar circumstances, this Court concurs with the findings returned by the learned Trial Court that delay on the part of the defendants in filing the written statement was for the reasons beyond their control. Even otherwise, in this case, it was after the written statement filed by the defendants was taken on record that an application was filed by the plaintiffs under Section 148 of the Code of Civil Procedure praying that the defence of the defendants be struck off. This clearly demonstrates the intent of the plaintiffs, who are the petitioners herein, that they want to take the benefit of the procedural tactics to deny the defendants even the right of putting forth their version before the learned Trial Court. In the process of fair adjudication of a case, procedure cannot be used as a tool to throttle the process of administration of justice. Accordingly, as this Court does not finds any infirmity with the impugned order, this petition being devoid of any merit, is dismissed. Pending miscellaneous applications, if any, also stands disposed of. In the process of fair adjudication of a case, procedure cannot be used as a tool to throttle the process of administration of justice. Accordingly, as this Court does not finds any infirmity with the impugned order, this petition being devoid of any merit, is dismissed. Pending miscellaneous applications, if any, also stands disposed of. JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 20.04.2019 passed by the Court of learned Senior Civil Judge, Shimla, in CMA No. 290 of 2019 and in CMA No. 226- 6 of 2018, vide which, learned Trial Court, while allowing the application filed by the defendants for extension of time for filing the written statement, dismissed the application filed by the plaintiff for striking off the defence of the defendants for not filing the written statement in time. 2. Brief facts necessary for the adjudication of the present petition are that the petitioners herein have filed a suit for declaration and injunction against the present respondents. This suit was initially filed before the Court of learned Civil Judge, Court No. 2, Rohroo, District Shimla, HP. The suit was instituted on 11.08.2017. After service, defendants appeared before the learned Court on 19.08.2017. On 21.08.2017, a request was made on behalf of the defendants before the learned Court below that they intended to file an application under Section 24 of the Code of Civil Procedure (hereinafter referred to as the 'Code' for short) for transfer of the case. Record demonstrates that an application under Section 151 of the Code for transfer of the case to the Court of learned District Judge, Shimla, was filed by the defendants before learned Civil Judge, Court No. 2, Rohroo, HP, which was dismissed on 19.09.2017 on the ground that power to transfer the case is vested with learned District Judge and the High Court under Section 24 of the Code. Record further demonstrates that simultaneously, an application under Section 24 of the Code for transfer of the case was also filed by the defendants before the Court of learned District Judge at Shimla. Record further demonstrates that simultaneously, an application under Section 24 of the Code for transfer of the case was also filed by the defendants before the Court of learned District Judge at Shimla. Record further demonstrates that on 23.6.2018, Court of learned Senior Civil Judge, Shimla passed an order, relevant part of which is quoted herein below:- "The present suit/case file has been received on dated 14.06.2018 alongwith copy of order dated 24.05.2018 passed in CMA No. 197-S/6 of 2017 titled as Sh. Sulajeet versus Sh. Khushi Ram and others passed by the Court of Ld. District Judge, Shimla, H.P. from the Court of Ld. Civil Judge Court No. II, Rohroo, Shimla, H.P. and it has been put up before me today by the Ahlmad concerned. At this stage Sh. D.P. Chauhan, Advocate, has filed Power of Attorney on behalf of all the defendants which is placed on record. The perusal of the order dated 24.05.2018 passed by the Court of Ld. District Judge, Shimla, H.P. shows that the present suit/case file has been assigned to this Court. Therefore, the office to check and register and now, notice be issued to the plaintiffs returnable for 24.08.2018." 3. Thereafter, on 24.08.2018, the case was ordered to be listed by the said Court for 24.09.2018 for the filing of the written statement by the defendants. It is pertinent to mention that during the period the case was pending in the Court of learned Civil Judge, Court No.2, Rohroo, defendants had been appearing in the said Court in person or through attorney as they were not able to engage any Counsel because no Counsel at Rohroo was willing to represent them in the Court, purportedly on account of influence of the plaintiffs. 4. Be that as it may, thereafter defendants filed their written statement on 25.09.2018, as is evident from the record of the case. When the case was thereafter listed before the learned Court below on 28.11.2018, an application was filed by the petitioners herein under Section 148 read with Section 151 of the Code of Civil Procedure for striking off the defence of the defendants. On the said date, case was adjourned for filing reply to the said application for 01.01.2019. When the case was thereafter listed before the learned Court below on 28.11.2018, an application was filed by the petitioners herein under Section 148 read with Section 151 of the Code of Civil Procedure for striking off the defence of the defendants. On the said date, case was adjourned for filing reply to the said application for 01.01.2019. Thereafter, the case was listed on 14.01.2019 and on the said date, alongwith reply filed to the said application, defendants also filed an application under Section 148 of the Code of Civil Procedure for enlarging the time for filing the written statement. 5. These applications stand disposed of vide impugned order whereby the application filed by the plaintiffs/petitioners has been dismissed whereas that filed by the defendants/respondents has been allowed. 6. Learned Counsel for the petitioners has argued that the impugned order, vide which learned Trial Court dismissed the application filed by the petitioners for striking off the defence of the respondents, is not sustainable in the eyes of law because while dismissing the application filed by the petitioners, learned Trial Court erred in not appreciating that as there was considerable delay in filing the written statement, the defence of the respondents/defendants deserved to be struck off as taking written statement on record at a belated stage had caused a great prejudice to the plaintiffs. 7. On the other hand, learned Counsel for the respondents has argued that there was no infirmity with the order passed by learned Trial Court because there was no intentional delay on the part of the respondents in filing the written statement and the same could not be filed earlier as is also evident from the averments made in the application filed by them before the learned Trial Court under Section 148 of the Code of Civil Procedure for reasons beyond their control. 8. I have heard learned Counsel for the parties and also gone through the order under challenge as also the record of the case. 9. The reasoning assigned by the learned Court below while passing the impugned order is self speaking and is being quoted in extensio herein below:- "5. Perused case file carefully. The plaintiff had filed the present suit before the Ld. Civil Judge Court No. 2 Rohru and the defendants were summoned for 19.08.2017. The record reveals that on 19.08.2017 Advocate Sh. The reasoning assigned by the learned Court below while passing the impugned order is self speaking and is being quoted in extensio herein below:- "5. Perused case file carefully. The plaintiff had filed the present suit before the Ld. Civil Judge Court No. 2 Rohru and the defendants were summoned for 19.08.2017. The record reveals that on 19.08.2017 Advocate Sh. Bharat Bhushan appeared for the defendants by filing Memo of Appearance and case was adjourned to 21.08.2017 for filing P.O.A. and reply. On 21.08.2017 Sh. Bharat Bhushan appeared for defendants on the strength of GPA and stated at the bar that the defendants intend to move an application under Section 24 CPC for transfer of the case. Thereafter, the case was listed for further orders. The case file was received in this Court on 23.06.2018 after the disposal of transfer application by the Ld. District & Sessions Judge. On the said date P.O.A. was filed on behalf of the defendants by Advocate Sh. D.P. Chauhan. Since, the plaintiffs were not present on the said date, therefore, the case was listed for notice to plaintiffs for 24.08.2018, whereafter it was listed for filing of written statement by the defendants. Vide order dated 28.11.2018, it was observed that written statement has already been filed by the defendants on 25.09.2018. On the same date, the plaintiffs moved the present application under Section 148 read with Section 151 CPC. The defendants filed reply to the said application on 14.01.2019 and also filed an application under Section 148 read with Section 151 CPC seeking enlargement of time for filing of the written statement. 6. Record also reveals that the GPA of the defendants Sh. Bharat Bhushan had filed a reply to the application under Order 39 rule 1 and 2 CPC on 21.08.2017 thereby disclosing intention to contest the matter. 7. It is evident from the record that the defendants had put appearance before the court of Ld. Civil Judge Court No. 2 Rohru and disclosed their intention to move an application for transfer of the case, and in fact such application was moved and the matter was transferred and assigned to the present Court. It also reveals that during the time when the matter was being heard by the Ld. Civil Judge Court No. 2 Rohru, no Advocate was engaged by the defendants and they appeared in person. It also reveals that during the time when the matter was being heard by the Ld. Civil Judge Court No. 2 Rohru, no Advocate was engaged by the defendants and they appeared in person. It is the plea of the defendants that since the plaintiff No. 2 is a practicing Advocate at Rohru, therefore, none appeared on their behalf and they were forced to move a transfer application. Admittedly, no effect order was passed by Ld. Civil Judge Court No. 2 Rohru when the transfer application was pending before the Ld. District & Sessions Judge Shimla, H.P. As per the record an Advocate appeared on behalf of the defendants only on 23.06.2018 and the written statement was filed on 25.09.2018." 10. During the Course of arguments, learned Counsel for the petitioners could not demonstrate that findings so returned by the learned Court below were perverse findings and are not based on record. The reasonings assigned by the learned Trial Court as have been quoted herein above clearly demonstrate that the reason as to why written statement could not be filed by the defendants when the matter was pending at Rohroo was that plaintiff No.2 happens to be a practicing Lawyer at Rohroo and on this count, no practicing Lawyer at Rohroo appeared on behalf of the defendants. Defendants were forced to move the transfer application which was subsequently allowed by the Court of learned District Judge, Shimla and after the matter was transferred to other Court at Shimla, written statement was filed by the defendants. In these peculiar circumstances, this Court concurs with the findings returned by the learned Trial Court that delay on the part of the defendants in filing the written statement was for the reasons beyond their control. Even otherwise, in this case, it was after the written statement filed by the defendants was taken on record that an application was filed by the plaintiffs under Section 148 of the Code of Civil Procedure praying that the defence of the defendants be struck off. This clearly demonstrates the intent of the plaintiffs, who are the petitioners herein, that they want to take the benefit of the procedural tactics to deny the defendants even the right of putting forth their version before the learned Trial Court. This clearly demonstrates the intent of the plaintiffs, who are the petitioners herein, that they want to take the benefit of the procedural tactics to deny the defendants even the right of putting forth their version before the learned Trial Court. In the process of fair adjudication of a case, procedure cannot be used as a tool to throttle the process of administration of justice. Accordingly, as this Court does not finds any infirmity with the impugned order, this petition being devoid of any merit, is dismissed. Pending miscellaneous applications, if any, also stands disposed of.