Umrao Singh Thirawat v. Civil Judge JD and Judicial Magistrate, Viratnangar
2020-01-22
PRAKASH GUPTA
body2020
DigiLaw.ai
ORDER : Prakash Gupta, J. 1. This writ petition has been filed by the petitioner-defendant (hereinafter referred to as 'the defendant) against the order dated 21.12.2010 whereby the trial court allowed the application filed by the respondent-plaintiff (hereinafter referred to as 'the plaintiff') and denied to take the written statement filed by the defendant on record for the reason that the opportunity to file the same had already been closed. 2. Facts giving rise to the present writ petition are that the plaintiff Mira Devi filed a suit for permanent injunction against the defendant Umrao Singh Thirawat. Vide order dated 26.8.2002, opportunity to file the written statement by the defendant Umrao Singh Thirawat was closed. During the pendency of the suit the plaintiff filed an application under Order 1 Rule 10(2) read with Section 151 CPC for impleading Zila Bhoomi Vikas Bank as a party defendant no. 2 in the aforesaid suit. Vide order dated 25.5.2005, the Trial Court allowed the application and impleaded Zila Bhoomi Vikas Bank as a party defendant no. 2 in the aforesaid suit and the matter was posted for filing the written statement by the defendant no. 2. Taking the undue benefit of opportunity being granted to the defendant no. 2 to file the written statement, the defendant no. 1 Umrao Singh Thirawat filed the written statement, irrespective of the fact that his opportunity to file the written statement had already been closed by the Trial Court vide its order dated 26.8.2002. 3. The plaintiff filed the application for not taking the written statement filed by the defendant no. 1 on record for the reason that his opportunity to file the written statement had already been closed vide order dated 26.8.2002. The said order dated 26.8.2002 was challenged before this Court by filing petition, which was dismissed. In this view of the matter, it was prayed that the written statement filed by the defendant no. 1 be kept in Part D and the same shall not be taken on record. The defendant no. 1 filed the reply to the said application. It was submitted that on the application filed by the plaintiff, Zila Bhoomi Vikas Bank was impleaded as a party defendant in the suit filed by the plaintiff. Resultantly the amended plaint was filed and a copy whereof was given to the defendant.
The defendant no. 1 filed the reply to the said application. It was submitted that on the application filed by the plaintiff, Zila Bhoomi Vikas Bank was impleaded as a party defendant in the suit filed by the plaintiff. Resultantly the amended plaint was filed and a copy whereof was given to the defendant. In the amended plaint, new facts were incorporated, for which the Court granted permission to file the amended written statement. The amended written statement was filed within the prescribed time. In this view of the matter, amended written statement was required to be taken on record. 4. The Trial Court vide its order dated 21.12.2010 allowed the plaintiff's application and denied to take the written statement filed by the defendant no. 1 on record. Hence the writ petition. 5. Learned counsel for the defendant no. 1 submitted that the defendant no. 1 has got the right to defend himself which can be possible only on his filing the written statement. He further submits that the Trial Court had no jurisdiction to reverse its own earlier order, whereby it had directed to take the written statement of the defendant no. 1 to the amended plaint on record. 6. Learned counsel for the respondents plaintiff and the counsel for the defendant no. 2 supported the impugned order. They submit that the opportunity to file the written statement by the defendant no. 1 had already been closed by the Trial Court vide its order dated 26.8.2002 and only the defendant no. 2 was permitted to file the written statement to the amended plaint. In this view of the matter, once the opportunity to file the written statement by the defendant no. 1 was closed vide order dated 26.8.2002, which was challenged before this Court and the petition there against was dismissed, there was no question to grant an opportunity to the defendant no. 1 to file the written statement to the amended plaint. In support of his contentions, learned counsel for the plaintiff places reliance on the judgment passed by the Coordinate Bench of this Court in the case of Jaan Mohd. Versus Mohan Lal reported in 2019 (2) WLC (Raj.) 43; and the judgment of Delhi High Court in the case of Sh. Harsh Chadha Versus Sh. C.K. Sharma - CM (M) No. 818/2014 & CM No. 14619/2014 (Stay). 7. Heard. Considered. 8.
Versus Mohan Lal reported in 2019 (2) WLC (Raj.) 43; and the judgment of Delhi High Court in the case of Sh. Harsh Chadha Versus Sh. C.K. Sharma - CM (M) No. 818/2014 & CM No. 14619/2014 (Stay). 7. Heard. Considered. 8. A perusal of the documents available on record evince that the suit for permanent injunction was filed by the plaintiff in the year 2000. Thereafter vide order dated 26.8.2002, opportunity to file the written statement by the defendant no. 1 Umrao Singh Thirawat was closed. Thereafter the plaintiff filed an application under Order 1 Rule 10(2) read with section 151 CPC. The Trial Court vide its order dated 25.5.2005 allowed the application and impleaded Zila Bhoomi Vikas Bank as a party defendant no. 2 in the aforesaid suit and the matter was posted for filing the written statement by the defendant no. 2. The defendant no. 1 taking the undue advantage of opportunity being granted to the defendant no. 2 to file the written statement, filed the written statement, despite the fact that his opportunity to file the written statement had already been closed by the Trial Court vide its order dated 26.8.2002. I am of the considered view that when the opportunity to file the written statement had already been closed, there was no reason to allow the defendant no. 1 to file written statement to the amended plaint, moreso in view of the fact that in the amended plaint only defendant no. 2 was added and consequential amendment in that regard was made and no additional averment was found to have been made by the plaintiff with regard to defendant no. 1. 9. The Coordinate Bench of this Court in the case of Jaan Mohd. Versus Mohan Lal (supra) has categorically held that as far as the right to file written statement after the amendment in the suit is concerned, a defendant definitely has a right to file amended written statement, pursuant to the amended plaint. But it is to be noticed that after the amendment in the plaint, the defendant gets right to file "amended written statement" and not "written statement". In cases like the present one, when no written statement has been filed, there arises no question of filing written statement in the guise of right to file amended written statement. The plea taken by the petitioners is preposterous and liable to be rejected.
In cases like the present one, when no written statement has been filed, there arises no question of filing written statement in the guise of right to file amended written statement. The plea taken by the petitioners is preposterous and liable to be rejected. 10. Somewhat similar view was taken by the Delhi High Court in the case of Sh. Harsh Chadha Versus Sh. C.K. Sharma (supra) wherein it was held that when the defence was already struck off and only technical corrections were directed to be made by the respondent/plaintiff at the stage of final arguments, which obviously does not give a right to the petitioner/defendant whose defence has been struck off to file the written statement. The petition was accordingly dismissed. 11. For the aforesaid reasons, I find no force in this writ petition and the same is liable to be dismissed, which stands dismissed accordingly.