Dr. Ravinath Tiwari vs Rajesh Kumar Pandey

U.C. Maheshwari, J.—Heard on the question of admission.

The petitioner one of the defendant has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 3.8.13 passed by II Civil Judge-II in COS No. 43-A/13 whereby his application filed under Order 1 rule 10(2) of the CPC for deleting his name from the array of the suit, has been dismissed.

Petitioner''s counsel after taking me through the averments of the plaint so also with the other papers placed on the record argued that on taking into consideration the entire pleadings of the plaint as accepted in toto even then the cause of action is not available to the respondent/plaintiff against the petitioner to file the impugned suit. As such, the cause of action is available against the State authorities and, in such premises, the petitioner being Public servant has been wrongly impleaded as defendant in the matter and prayed for allowing the application and deleting the name of petitioner No. 1 from the array of the plaint by admitting and allowing this petition.

In response of some query of the court, I am apprised by the counsel that till today no written statement has been filed on behalf of the present petitioner. Mere perusal of the plaint, it is apparent that some allegations have been stated against the petitioner/defendant No. 1 in it and unless the written statement is filed and such averment is denied by the present petitioner, till then such question could not be adjudicated either as preliminary issue or after recording the evidence on such issue. Although, if the written statement is not filed then by recording the ex-parte evidence some order may be passed by the trial court but I am of the considered view that the question which has been raised by the petitioner should have been considered by the trial court after filing the written statement and framing the issue on such question by adopting the procedure prescribed to decide such issue under the scheme of order 14 rule 2 of the CPC but such procedure has not been adopted by the trial court, hence, in such premises by setting aside the impugned order the petitioner is extended liberty to raise the question, which has been raised by way of impugned application, in the written statement and the trial court after framing the issue on such question, shall decide the same in accordance with the scheme of Order 14 rule 2 of the CPC either as preliminary issue if evidence is not required and if evidence is required then after recording the evidence of the parties. Till the aforesaid extent, this petition is allowed. However, the respondent No. 1/plaintiff is extended liberty to approach this court with appropriate petition or proceeding if he is aggrieved by this order or any part of it.

C.C. as per rules.