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2019 DIGILAW 2669 (RAJ)

Trust Mandir Shri Ladli Ji v. Lavesh Goswami

2019-10-14

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. This writ petition has been placed before this Court in view of the observations of Coordinate Bench of this Court that the matter requires interpretation of an earlier order passed by this Court dated 09.01.2018 and its interpretation taken by the learned trial Court in its impugned order dated 12.07.2018. 2. The then learned Additional District & Sessions Judge No. 4, Jaipur Metropolitan, has refused to take on record the written statement of the petitioners on the ground that this Court while setting aside the ex-parte proceedings undertaken against the petitioners vide order dated 21.10.2014 and also setting aside the order dated 23.07.2016 whereby application for setting aside moved before the concerned Court was rejected, was set aside observing that the trial Court may now proceed with the suit by framing issues. 3. Treating the aforesaid to mean that the trial Court was required to only frame issues and proceed further and not allow the petitioners to file written statement, the impugned order dated 12.07.2018 was passed. Aggrieved thereof, the petitioners have preferred the present writ petition. 4. Learned counsel appearing for the petitioners submits that once, the ex-parte proceeding order was set aside, it would mean that the petitioner would be allowed to file their written statement as the date of 21.10.2014 was fixed for filing of the written statement. However, as the counsel pleaded no instruction, written statement could not be filed and the proceedings were undertaken ex-parte against the petitioners. 5. Per contra; learned counsel appearing for the respondent- plaintiffs vehemently opposes the writ petition and submits that a specific prayer ought to have been made by the petitioners for allowing their written statement to be taken on record as the petitioners have not made any such prayer, it would amount to constructive res-judicata and bind them from not filing their written statement now. Learned counsel relies on the judgment passed by the Supreme Court in the case of Atcom Technologies Limited vs. Y.A. Chunawala And Company & Ors. reported in (2018) 6 SCC 639 to submit that the petitioners were required to give a valid reason for not filing their written statement. Learned counsel relies on the judgment passed by the Supreme Court in the case of Atcom Technologies Limited vs. Y.A. Chunawala And Company & Ors. reported in (2018) 6 SCC 639 to submit that the petitioners were required to give a valid reason for not filing their written statement. Learned counsel also relies on the judgment of a Coordinate Bench of this Court in the case of Sunil vs. Dilip Joshi & Anr: SBCWP No. 4500/2019, decided on 10.04.2019, wherein similar law was reiterated i.e. cogent reason has not been come forward on behalf of the concerned defendant as to why written statement was not filed within time. 6. I have considered the submissions made by the counsel for the parties. 7. This Court finds that the learned Additional District & Sessions Judge, Jaipur Metropolitan, has misguided himself. At no point of time, the Court has closed the written statement of the petitioners. The opportunity to file reply was never closed nor any such order is on record. It appears that on 21.10.2014, the date fixed for filing of the written statement, the counsel appearing for the petitioners pleaded no instruction and simply on the said basis, ex-parte proceedings were undertaken against the petitioners. The said order dated 21.10.2014 was set aside by this Court. It would thus mean that the proceedings were to start afresh from the date as prior to 21.10.2014. No other interpretation could have been taken. Observations of this Court to proceed further with the suit were in reference to the other aspects, which have been observed by the Court wherein this Court has observed that unnecessarily delay are being caused by the trial Courts on the technical issues resulting delay in disposal of the cases. It was also noticed that the Court below has taken time for rejecting the application moved by the petitioners under Order 9 Rule 7 CPC. However, it is most unfortunate that instead of interpreting the Court's judgment with a view to dispose of the matter, another complication has been initiated by taking an absurd the interpretation while passing the order dated 09.01.2018 resulting further delay in conclusion of the proceedings. 8. However, it is most unfortunate that instead of interpreting the Court's judgment with a view to dispose of the matter, another complication has been initiated by taking an absurd the interpretation while passing the order dated 09.01.2018 resulting further delay in conclusion of the proceedings. 8. Submission of learned counsel for the respondents that no cogent reason have been come forward for not filing of the written statement is not an issue before this Court at all as there is no order of the Court for closing the reply on the ground of delay in filing the same. The question of res-judicata or constructive res-judicata would also therefore not arise. The judgments as cited by the counsel for the respondents would have no application to the facts of the present case. 9. In view of the observations, as above, this writ petition is allowed. The trial Court is now directed to take the written statement of the petitioners on record and then proceed further.