Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 676 (JHR)

Shiv Kumar Lath v. Pappu Kumar Lath

2022-06-16

SUJIT NARAYAN PRASAD

body2022
JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. This writ petition is under Article 227 of the Constitution of India, whereby and whereunder, the order dated 07.01.2013 has been assailed, by which, the written statement has been refused to be accepted. 2. The brief facts of the case, as per the pleadings made in the petition are required to be enumerated, which reads as under: The respondent/plaintiff filed a suit for a preliminary decree of 1/3rd share in the suit house and also for carving out Takhta to the extent of 1/3rd share of the plaintiff by appointing a Pleader Commissioner. The said suit was registered as Partition Suit No. 37 of 2010. The trail Court, after having heard the learned counsel for the plaintiff, has issued notice but the defendant has not appeared, therefore, the notice has been published in the daily newspaper on 09.02.2011 and thereafter, the defendant has appeared and prayed for time to file written statement. The trial court has allowed the time and the defendant no. 2 has filed written statement contesting the suit. The plaintiff/respondent filed an objection petition on 20.04.2011 with a prayer for debarring the defendant no. 2 from filing any written statement and to proceed with the suit ex-parte against the defendant no. 2. The said objection was rejected by the trial court and allowed the written statement filed by the defendant, subject to payment of cost of Rs. 1,000/- But, even in spite of the aforesaid order, the written statement has not been filed. The defendant no. 2, the petitioner herein, has filed an application praying therein to exonerate him from the cost of Rs. 1,000/- or to fix installment for payment of the same. But, vide order dated 02.01.2012, the said petition dated 06.08.2011 was rejected, against which, the present petition has been filed. 3. Mr. Anand Kumar Pandey, learned counsel for the petitioner has submitted that since the petitioner was facing the financial difficulty, therefore, he could not be able to deposit the said amount, as such, the application for exonerating him to deposit Rs. 1,000/- or allowing the petitioner to deposit the same by way of installment has been filed. But the trial Court has rejected the same and therefore, the instant petition has been filed. 1,000/- or allowing the petitioner to deposit the same by way of installment has been filed. But the trial Court has rejected the same and therefore, the instant petition has been filed. He further submits that as on today, he is now ready to deposit the aforesaid cost as has been directed to be deposited as a condition of acceptance of written statement. 4. Mr. Kaushik Sarkhel, learned counsel for the respondents has vehemently opposed such submission by taking the plea that it is due to the laches committed on the part of the petitioner, the suit has been filed in the year 2010 and now 12 years have already passed, as such, the same is fit to be dismissed. 5. This Court has heard the learned counsel for the parties and perused the documents available on record as also considered the finding recorded by the trial Court while rejecting the petition filed on behalf of the petitioner for exonerating him to deposit the amount of Rs. 1,000/- as a condition for acceptance of written statement or allowing the petitioner to deposit the cost by way of installment. 6. Submission has been made on behalf of the petitioner that if the petitioner will not be allowed to submit the written statement, it will prejudice the interest and as such, taking into consideration the implication of not accepting the written statement, the petitioner will suffer since he will be deprived from opportunity to contest the suit by taking all the plea. 7. This Court after considering the aforesaid submissions and taking into consideration the submission made on behalf of the petitioner that he is now ready to deposit the said amount, as per the direction passed by the trial Court, is of the view that the instant petition is fit to be allowed, otherwise a vital right to contest the suit will be denied. 8. Accordingly, the order dated 07.01.2013 passed in Partition Suit No. 37 of 2010, is hereby quashed and set aside with a direction upon the petitioner to comply with the order to deposit the said amount. 9. The trial Court is further directed that if the said amount will be deposited, the written statement will be accepted, if filed on behalf of the petitioner, the defendant no. 2 therein, within the period of two weeks. 10. 9. The trial Court is further directed that if the said amount will be deposited, the written statement will be accepted, if filed on behalf of the petitioner, the defendant no. 2 therein, within the period of two weeks. 10. This Court taking into consideration the fact that the suit is of the year, 2010 and it has already delayed for 12 years during the pendency of the writ petitioner, therefore, deems it fit and proper to direct the trial Court to dispose of the Partition Suit on priority basis expeditiously without granting any un-necessary adjournment, since the suit is pending since last 12 years. 11. Accordingly, the instant petition stands allowed with aforesaid directions/observations. 12. In consequent to disposal of this petition, pending interlocutory applications, if any, stands disposed of. 13. Interim order dated 01.03.2013 also stands vacated.