THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION No.963 of 2016
ORDER:
The Docket Order dated 06.08.2015 passed by the Special Sessions Judge for trial of SC & ST (POA) Act -cum- VII Additional District & Sessions Judge, Ranga Reddy District, at L.B. Nagar, in unmentioned I.A in O.S.No.327 of 2011, is challenged before this Court.
The petitioners herein are the plaintiffs, and the respondents herein are the defendants before the trial Court. For the sake of convenience, the parties will be referred to as they were arrayed before the trial Court.
Defendant No.1 filed an interlocutory application in the suit O.S.No.327 of 2011 on 27.07.2015 invoking Order IX Rule 7 of CPC seeking to set aside the ex parte order dated 22.02.2012. The said interlocutory application was not numbered by the trial Court.
Counter affidavit was filed by the plaintiffs 2 to 4 opposing the application filed by the defendant No.1.
The trial Court passed the impugned Docket Order on 06.08.2015, which reads as under:
"Exparte order against D1 is set aside WS of D1 received no additional issues arise. Posted for cross examination of PW1 by D1 call on 13-08- 2015."
Aggrieved by the same, the plaintiffs filed the present civil revision petition.
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Heard the learned counsel for the petitioners/plaintiffs, and the respondents/defendants.
This is a case where the learned Additional District Judge has grossly mis-conducted himself. The Original Record does not disclose that the I.A. filed by the defendant No.1 under Order IX Rule 7 CPC was not numbered. The Docket endorsement of 06.08.2015 reads as "I.A. pending" in Blue Ink, and the Presiding Officer's Order, which is in Green Ink, reads as extracted above.
It is to be noted that as per the Certified Copy of the Docket Order dated 19.12.2012 provided by the trial Court vide C.A.No.126 of 2016, the right of filing of Written Statement by defendant No.1 was forfeited on 19.12.2012 and not on 22.02.2012.
At the outset, the application was made invoking Order IX Rule 7 of CPC, and not under Order VIII Rule 1 or Rule 10 of CPC seeking to enlarge the time for filing the Written Statement. There is no application made seeking to enlarge time for filing of Written Statement. At best, the impugned Docket Order dated 06.08.2015, even assuming that the application made by defendant No.1 is to be treated as application under Order IX Rule 7 of CPC, the same would only enable defendant No.1 the benefit of participating in the suit and does not enable him to file the Written Statement as there was no application seeking to enlarge the time for filing the Written Statement. Further, in the absence of any application by the defendant No.1 seeking to enlarge the time for filing the Written Statement, the Written Statement could not have been received by the learned trial Judge. In that view of the matter, the Docket Order dated 06.08.2015 is liable to be set aside.
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Learned counsel for respondent No.1 before this Court pleads that in the affidavit filed in support of the un-numbered I.A. before the trial Court the respondent No.1 had clearly stated the reason for not filing the Written Statement within the time allowed, and that the reason for not filing of written statement within time was only on account of the compromise arrived at with the deceased plaintiff No.1.
The reason sought to be put forth by the defendant No.1 for not filing the Written Statement within the time allowed, does not inspire the confidence of this Court for the reason that even assuming that there is a compromise proposal being discussed with the deceased plaintiff No.1, as per the record, the plaintiff No.1 died on 09.06.2013 and the application seeking to set aside the ex parte order was made only on 27.07.2015. Further, the impugned Docket Order dated 06.08.2015 is bereft of any reasoning.
It is well settled that a Written Statement cannot be received at a belated stage. A reference can be made to SCG Contracts (India) Private Limited v. K.S.Chamankar Infrastructure Private Limited1; Mohammed Yusuf v. Faij Mohammad2; Desh Raj v. Balkishan (D) through proposed LR Ms.Rohini3; Y. Venkata Rama v. Yellaboyani Venkatamma @ Y. Munivenkatamma4; and Atcom Technologies Limited v. Y.A. Chunawala and Company5.
In view of the settled legal position through a catena of judgments on the point, it is not necessary for this Court to enumerate and discuss each and every decision. Suffice it to say that though the Court has discretion to accept the Written Statement, the Court is 1 (2019) 12 SCC 210 2 (2009) 3 SCC 513 3 Civil Appeal No.433 of 2020 dt.20.01.2020 4 2018 (3) ALD 561 5 (2018) 6SCC 639 4 crp_963_2016 CKR, J required to judiciously exercise the discretion after satisfying itself that the reasons stated are germane and that there was justifiable cause for the defendant for not adhering to the timeframe prescribed for filing the written statement.
In the facts of the present case, the impugned Docket Order dated 06.08.2015, being bereft of reasons, is liable to be set aside.
Accordingly, the civil revision petition is allowed, and the Docket Order dated 06.08.2015 is set aside. There shall be no order as to costs. Miscellaneous petitions, if any pending in this civil revision petition, shall stand closed.
The Registrar General of this Court shall take note of the irregularity committed by the Presiding Officer and apprise him of the legal way of adjudicating the matters.
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CHALLA KODANDA RAM, J
16th April, 2021
ksm
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THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM CIVIL REVISION PETITION No.963 of 2016 16th April, 2021 ksm