Dharam Singh and Another vs Addu Ram and Others

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court, dated May 16, 1988, whereby the application filed on behalf of the Defendants seeking permission to file reply to the written statement filed on behalf of the added Defendants 3 to 8 was declined.

Earlier the trial court,--vide its order, dated February 4, 1988, allowed the application filed under Order 1, Rule 10, Code of Civil Procedure, on behalf of Defendants 3 to 8. That application was not contested by the Plaintiff, but rather was opposed by the Defendants. However, the trial Court allowed the same. When they filed the written statement, Defendants 1 and 2 sought permission to file reply to their written statement, which has been declined by the trial Court by the impugned order. According to the trial Court, there was no provision for allowing the Defendants to tile replication to the written statement.

Learned Counsel for the Petitioners submitted that as a matter of fact the earlier order allowing the application filed under Order 1, Rule 10, Code of Civil Procedure, dated February 4, 1988, itself was wrong and illegal. Defendants 3 to 8 should have been impleaded as Plaintiffs if at all because they were claiming certain rights in the suit along with the Plaintiff and that is why the Plaintiff never opposed the said application. However, argued the learned Counsel, in case they were added as Defendants and were allowed to file their written statement, Defendants 1 and 2 should have been allowed to file, reply thereto.

After hearing the learned Counsel, I am of the considered view that the earlier order dated February 4, 1988 was not warranted. Defendants 3 to 8 could file a separate suit to establish their right, if any, in the suit property. In any case, at this stage it is directed that either the said Defendants be impleaded as Plaintiffs if the Plaintiffs have no objection and if they cannot be impleaded as Plaintiffs, they be directed to file a separate suit. In the present suit they could not be allowed to take up the defence which effects the rights of Defendants 1 and 2.

Consequently, this petition succeeds; the order dated February 4, 1988, as well as the impugned order dated May 16, 1988, are set aside. Defendants 3 to 8 may be added ts Plaintiffs if the Plaintiff has no objection and in that case the Defendants Nos. 1 and 2 will be entitled to file their written statement to the plea taken by the added Plaintiffs. In case, the Plaintiff does not agree, in that situation, Defendants Nos. 3 to 8 will be directed to file a separate suit. The petition is disposed of accordingly.