Vijay Singh vs Abdul Hameed

Dinesh Maheshwari, J.—In the civil suit for specific performance of agreement and perpetual injunction as filed by the Plaintiffs-Respondents, the Defendant-Petitioner was served with summons on 22.02.2010. For the Petitioner having failed to file the written statement and the reply to the temporary injunction application within time and having failed to appear, the learned Trial Court marked his absence on 08.07.2010 and proceeded to close down his right of filing written statement and reply. Thereafter, on 27.09.2010, the Petitioner moved the applications (Annex. 3) before the Trial Court stating that he could not file the written statement and reply earlier for his and his wife''s ailments; and prayed for taking the written statement and reply on record. By the impugned orders dated 19.02.2011 (Annex. 6), the learned Trial Court has rejected the applications so moved by the Petitioner essentially with reference to the fact that the earlier order dated 08.07.2010 remains operating and has not been challenged in appropriate proceedings. Aggrieved, the Petitioner has preferred this writ petition.

During the course of submissions in this writ petition, it is an admitted position that the Petitioner has indeed filed the written statement and reply to the temporary injunction application before the Trial Court.

Seeking to challenge the orders dated 08.07.2010 and 19.02.2011 (Annex. 2 and Annex. 6) it is submitted on behalf of the Petitioner that the Trial Court has taken rather a rigid view of the matter and has failed to exercise jurisdiction vested in it to enlarge the time for filing the written statement and reply. It is submitted that for the reasons and circumstances pointed out by the Petitioner, the learned Trial Court could have taken the written statement and reply on record without causing any prejudice to either of the parties; and that the same deserve to be taken on record for affording proper opportunity of defence to the Petitioner and for just and effectual adjudication.

Per contra, it is contended on behalf of the Respondents that the Petitioner only attempted to prolong the proceedings and failed to file the written statement and the reply to temporary injunction application in time and even avoided to appear before the Court; and hence, the learned Trial Court has not committed any error in passing the orders impugned. It is also submitted that the Petitioner is not entitled to challenge the two orders dated 08.07.2010 and 19.02.2011 in one writ petition nor is entitled to challenge the orders passed in the original suit and the temporary injunction application by way of one writ petition.

Having given a thoughtful consideration to the submissions made by the learned Counsel and having examined the material placed on record, this Court is of opinion that in the totality of circumstances of this case, instead of entering into the technicalities about the form of the petition and want of multiple petitions in relations to the impugned inter-related orders, an order deserve to be made for the desirable progress of the proceedings in the Trial Court and for expeditious decision of the matter on merits.

The suit in question has been filed for specific performance of an agreement dated 15.09.2009 relating to an immoveable property in the form of a residential house at Ratanada, Jodhpur. Of course, it appears that the Petitioner omitted to file the written statement and reply in time and nobody appeared on his behalf before the Trial Court on 08.07.2010 but then, before any other substantial proceedings, the Petitioner not only appeared but filed the written statement and reply to the application for temporary injunction on 27.09.2010 while pointing out the reasons for delay viz., ailment of himself and the spouse. Even if the earlier order dated 08.07.2010 had not been challenged before the higher Court, that by itself had not taken away the jurisdiction of the learned Trial Court to take the written statement and reply on record in the interest of justice.

In the totality of circumstances, this Court is of opinion that interest of justice shall be served if the impugned orders are modified in the manner that the written statement and the reply to the temporary injunction application are ordered to be taken on record subject to payment of costs and with further orders for expeditious proceedings.

Accordingly, this writ petition is allowed to the extent and in the manner indicated above; the impugned orders dated 08.07.2010 and 19.02.2011 shall stand modified and the written statement and the reply to the temporary injunction application as filed by the Petitioner shall be taken on record subject to the payment of costs in the sum of Rs. 6,000/- (six thousand) by the Petitioner-Defendant to the Plaintiffs within one week from today. It is also made clear that payment of costs shall be the condition precedent for the Petitioner''s participation in the further proceedings in the suit. It shall also be expected of the learned Trial Court to proceed expeditiously in the matter; and it shall be permissible for the Trial Court to deal sternly with any act or omission on the part of the Petitioner if the same hinders the progress of the matter. There shall be no further orders as to costs of this writ petition.