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Judgment
The instant petition has been filed by the petitioner-defendant No.1 before challenging the order dated 22.02.2011 and order dated 15.01.2018 passed by the Additional District Judge No.1, Bikaner whereby the application dated 01.10.2015 filed by the petitioner for taking written statement along with counter claim on record has been dismissed.
Learned counsel for the petitioner submitted that the petitioner has been suffering from mental illness and he was not in a position to file the written statement and in support thereof documents were also placed before the trial Court. Learned counsel further submitted that by a cryptic order, the application of the petitioner to permit him to file written statement has been rejected.
Learned counsel for the petitioner further submitted that the right to file written statement along with counter claim cannot be denied to the petitioner looking to the extra ordinary circumstances of the petitioner on account of his mental illness.
Learned counsel further submitted that there is no intention to cause delay in the suit filed by the respondent No.1.
Learned counsel appearing for respondent No.1 submitted that the petitioner was served with notices on 17.11.2009 and several opportunities were granted to file written statement. Learned counsel further submitted that finally the Court below had to close the right of filing written statement on 22.12.2011. Learned counsel submitted that the petitioner was not vigilant as he filed the application for taking written statement on record on 01.10.2015. Learned counsel further submitted that the civil Court in such background of the case was justified in passing the impugned order. Learned counsel for the respondents further submitted that the filing of written statement along with counter claim will take considerable time and at least the right to file counter claim may be denied to the petitioner.
This Court has considered the facts of the case and finds that the petitioner had filed the documents relating to his mental illness and as such in the interest of justice, one opportunity is required to be given to the petitioner for filing the written statement. This Court further finds that if the petitioner has right to file written statement, counter claim can always be filed along with written statement and as such the Court permits the petitioner to file the written statement on the next date of hearing along with his counter claim. This Court finds justification in the prayer of learned counsel for the respondents that petitioner if allowed to file the written statement along with counter claim at this stage where evidence is recorded, there will be delay in deciding the suit. This Court is conscious of the fact that filing of written statement along with counter claim, will take some time. However, suit is said to be pending since the year 2009, it is necessary that some suitable direction may be issued to the trial Court to decide the suit as expeditiously as possible.
Learned counsel for the respondent further submits that possession of the property in question where sale deed has been challenged is also with the defendant-petitioner and as such the respondent is suffering immensely during the pendency of the suit.
This Court disposes of the present writ petition by permitting the petitioner-defendant No.1 to file the written statement along with counter claim, if any, and the same may be filed before the trial Court on or before 04.02.2019. The trial Court is further directed to decide the suit as expeditiously as possible but in no case later than one year from the date of receipt of the copy of this order. The trial Court is directed not to grant further unnecessary adjournments.
Accordingly, the instant writ petition is allowed and the orders dated 22.02.2011 & 15.01.2018 are set aside.
This Court further feels that some reasonable cost be paid to the plaintiff as delay is caused by the petitioner in filing the written statement. This Court thinks it proper to direct the petitioner to pay a cost of ₹ 5,000/-, to the respondent No.1.
The instant petition has been filed by the petitioner-defendant No.1 before challenging the order dated 22.02.2011 and order dated 15.01.2018 passed by the Additional District Judge No.1, Bikaner whereby the application dated 01.10.2015 filed by the petitioner for taking written statement along with counter claim on record has been dismissed.
Learned counsel for the petitioner submitted that the petitioner has been suffering from mental illness and he was not in a position to file the written statement and in support thereof documents were also placed before the trial Court. Learned counsel further submitted that by a cryptic order, the application of the petitioner to permit him to file written statement has been rejected.
Learned counsel for the petitioner further submitted that the right to file written statement along with counter claim cannot be denied to the petitioner looking to the extra ordinary circumstances of the petitioner on account of his mental illness.
Learned counsel further submitted that there is no intention to cause delay in the suit filed by the respondent No.1.
Learned counsel appearing for respondent No.1 submitted that the petitioner was served with notices on 17.11.2009 and several opportunities were granted to file written statement. Learned counsel further submitted that finally the Court below had to close the right of filing written statement on 22.12.2011. Learned counsel submitted that the petitioner was not vigilant as he filed the application for taking written statement on record on 01.10.2015. Learned counsel further submitted that the civil Court in such background of the case was justified in passing the impugned order. Learned counsel for the respondents further submitted that the filing of written statement along with counter claim will take considerable time and at least the right to file counter claim may be denied to the petitioner.
This Court has considered the facts of the case and finds that the petitioner had filed the documents relating to his mental illness and as such in the interest of justice, one opportunity is required to be given to the petitioner for filing the written statement. This Court further finds that if the petitioner has right to file written statement, counter claim can always be filed along with written statement and as such the Court permits the petitioner to file the written statement on the next date of hearing along with his counter claim. This Court finds justification in the prayer of learned counsel for the respondents that petitioner if allowed to file the written statement along with counter claim at this stage where evidence is recorded, there will be delay in deciding the suit. This Court is conscious of the fact that filing of written statement along with counter claim, will take some time. However, suit is said to be pending since the year 2009, it is necessary that some suitable direction may be issued to the trial Court to decide the suit as expeditiously as possible.
Learned counsel for the respondent further submits that possession of the property in question where sale deed has been challenged is also with the defendant-petitioner and as such the respondent is suffering immensely during the pendency of the suit.
This Court disposes of the present writ petition by permitting the petitioner-defendant No.1 to file the written statement along with counter claim, if any, and the same may be filed before the trial Court on or before 04.02.2019. The trial Court is further directed to decide the suit as expeditiously as possible but in no case later than one year from the date of receipt of the copy of this order. The trial Court is directed not to grant further unnecessary adjournments.
Accordingly, the instant writ petition is allowed and the orders dated 22.02.2011 & 15.01.2018 are set aside.
This Court further feels that some reasonable cost be paid to the plaintiff as delay is caused by the petitioner in filing the written statement. This Court thinks it proper to direct the petitioner to pay a cost of ₹ 5,000/-, to the respondent No.1.