Shri Labh Chand Jain vs Shri Sugan Chand Jain & Ors.
2010 Latest Caselaw 3066 Del

     *          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                              Date of Reserve: May 20, 2010
                                                                 Date of Order: July 02, 2010


+ Review Petition No.475/2009 & IA 15754/2009 in CS(OS) 2214/1988
%                                                                  02.07.2010
      Shri Labh Chand Jain                                 ...Plaintiff
      Through: Mr. C.K. Rai and Mr. M. Shyam, Advocates

         Versus

         Shri Sugan Chand Jain & Ors.                             ...Respondents
         Through: Mr.A.K. Thakur, Mr. R.K. Mishra, Mr. Rajiv Arora, Advocates for D-3
                  Mr. S.N. Chaudhary, Advocate for D-5


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?



         ORDER

1. By this order, I shall dispose of the review petition no.475 of 2009 and IA

No.15754/2009. IA 15754/2009 has been made by defendant no.5 seeking stay of

operation of order dated 23rd November 2009, permitting defendant no.3 to file his

evidence by way of affidavit. The review petition 475 of 2009 has been made by

defendant no.5/Lr of defendant no.1 for reviewing /recalling the order dated 23rd

November 2009 passed by this Court.

2. On 23rd November 2009, the matter was referred to the Court by the Joint

Registrar for further directions. Defendant no.3 was already ex parte. The counsel for

defendant no.3, however, put appearance and stated that since the matter was at the

stage of defendants' evidence, defendant no.3, who had already filed affidavit by way of

evidence, be permitted to lead evidence. This Court directed that copy of the affidavit of

C S(OS) 2214/1988 Labh Chand Jain v. Sugan Chand Jain & Ors. Page 1 Of 4 evidence of defendant No.3 be furnished to other parties and the evidence of defendant

no.3 be recorded after evidence of other defendants was over.

3. In the review petition, it is submitted by the counsel for defendant no.5 that the

present suit was filed by the plaintiff for partition of the properties on the ground that the

suit properties were properties of an HUF of late father Shri Dhanpat Singh Jain, while as

a matter of fact, the mother of the defendant no.5 was the sole and absolute owner of the

suit properties having purchased the same from her own sources and income.

Defendant no.3 was proceeded ex parte in 1990. No application was made by her for

setting aside the ex parte order. She had not even filed written statement. Since the

plaintiff himself had not been able to prove his case, in order to fill up the lacunae, at his

instance, defendant no.3, at this late stage i.e. after two decades got her affidavit filed in

evidence. Along with her affidavit, she filed certain documents and her affidavit travelled

beyond pleadings since there was no written statement on record on her behalf.

Defendant no.3 cannot be allowed to adopt written statement of defendant no.2 as stated

by her. Even permission to lead evidence did not give a right to defendant no.3 to

introduce additional facts and additional documents. It is submitted that the impugned

order permitting defendant no.3 to file her affidavit should be recalled and defendant no.3

should not be permitted to lead evidence.

4. The law in respect of a person having been proceeded ex parte in a case is well

settled. If a person is proceeded ex parte, the ex parte order can be set aside by the

Court under Order IX Rule 7 CPC on the Court being satisfied that there was good and

sufficient cause for non-appearance of a person. However, a person, proceeded ex parte

on a particular hearing, has a right to participate in further proceedings of the case and

he cannot be denied the right to participate in the further proceedings of the case. What

is not permitted is that the hands of the clock cannot be set back.

C S(OS) 2214/1988 Labh Chand Jain v. Sugan Chand Jain & Ors. Page 2 Of 4

5. A person who does not file written statement to a suit is not ousted from the suit.

A person may not file written statement in the suit for several reasons like, he may think

that the suit was inherently not maintainable and he would convince the Court about non-

maintainability of the suit; he may think that the claim of the plaintiff was justified and he

need not contest the claim; he may think that the claim of the plaintiff, even if decreed,

was not going to affect him, so why should he unnecessarily file written statement; he

may think that since other defendants were contesting the suit that was sufficient to

protect his interest and he need not separately file a written statement and engage a

counsel. These are some of the few possibilities where written statement may not be

filed by a person. However, a person who does not file written statement can still

participate in the proceedings and lead evidence either supporting the claim saying that

he agrees with the plaint or he may argue before the Court that the claim was inherently

not maintainable and he can demonstrate this without filing written statement. The Court

cannot deny a person the right to participate in the proceedings if a person does not file

written statement or has remained ex parte upto some stage. However, such a person

who has been proceeded ex parte cannot be relegated back to the initial stage and he

will have to join the proceedings from the stage he started appearing in the Court. In the

case in hand, defendant no.3 joined the proceedings when evidence of defendants was

going on and wanted that her evidence be also recorded. Under these circumstances,

since she was allowed to participate in the proceedings, she had a right to lead evidence

in support of plaintiff case. However, since she had not filed written statement, it can be

presumed that she was supporting the plaintiff case. However, she cannot be permitted

to lead evidence on the pleadings of other defendants by saying that she had adopted

the written statement of other defendants. She cannot be given liberty to lead evidence

on those pleadings in written statement of other defendants on which other defendants

had opportunity to lead evidence. In absence of her written statement she can lead

C S(OS) 2214/1988 Labh Chand Jain v. Sugan Chand Jain & Ors. Page 3 Of 4 evidence in support of plaintiff only to the extent of pleadings of the plaintiff. She cannot

introduce new documents by attaching the documents along with affidavit of evidence,

since the stage of filing documents was over long back.

6. The legal position about participation of defendant in the proceedings was made

clear by the Supreme Court in AIR 1955 SC 425 Sangram Singh v Election Tribunal and

AIR 1964 SC 497 Arjun Singh v Mohindra Kumar and Ors wherein the Supreme Court

had observed that even in a case where defendant is proceeded ex parte, he cannot be

penalized by not allowing him to take part in remaining proceedings of the suit. He,

however, cannot claim to be relegated to the position at the commencement of the trial.

7. I, therefore, consider that the order dated 23rd November, 2009 passed by this

Court cannot be recalled. However, it is clarified that defendant no.3 cannot be permitted

to introduce any new document nor her affidavit can travel beyond pleadings given in the

plaint. Any part of the affidavit which is beyond pleadings in the plaint of the plaintiff and

introducing new documents or relying on the pleadings of other defendants shall not be

read in evidence. She however can argue on the basis of whatever evidence has already

come on record.

8. With above order, the review petition no.475/2009 and IA15754/2009 stand

disposed of.

July 02, 2010                                                       SHIV NARAYAN DHINGRA J.
rd




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