Mst. Shahzada Akhter vs Mst. Noori And & Ors
2021 Latest Caselaw 1205 j&K/2

                                                                                       Item No.20
                                                                                       Advance List
                               HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
                                                 SRINAGAR


                                                    OWP No.1505/2016


                      MST. SHAHZADA AKHTER                                ...PETITIONER(S)
                      Through:        Mr. M. Younis Bhat, Advocate.

                      Vs.

                      MST. NOORI AND & ORS                             ...RESPONDENT(S)

                      Through:         None.

                      CORAM:          HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                                     (ORDER)(ORAL)
                                                        29.09.2021

1. Instant petition has been filed under Section 104 of the Constitution

of J&K, which corresponds to Article 227 of the Constitution of India,

whereby petitioner has challenged order dated 24.06.2016 passed by City

Munsiff, Srinagar, in a suit titled Mst. Shahzada Akhter v. Mst. Noori &

Ors.

2. The facts emerging from the record are that in the year 2010,

petitioner (hereinafter referred to as the plaintiff) had filed a suit for

declaration and injunction against the respondents before the Court of City

Munsiff, Srinagar. The declaration was sought by the petitioner with

regard to land measuring 9 marlas situated at Mouza Batamaloo and the

injunction against the defendants was also sought regarding the same land.

MOHAMMAD ALTAF BHAT 2021.10.05 12:48 I attest to the accuracy and integrity of this document

3. It appears that the defendant No.1/respondent No.1 herein filed

written statement to the said suit during the same year i.e., in the year

2010. The aforesaid defendant also raised a counter claim seeking right of

prior purchase and recovery of possession of the suit land from the

plaintiff.

4. The suit came to be dismissed in default of appearance of the

plaintiff in terms of order dated 02.11.2013 passed by the trial court.

However, the trial court while dismissing the suit of the plaintiff, posted

the counter claim of defendant No.1 for consideration on 26.12.2013.

5. It appears that on 09.11.2015, the plaintiff appeared before the trial

court and filed an application seeking permission to contest the counter

claim and to allow her to file written statement to the counter claim. The

said application came to be dismissed by the trial court in terms of

impugned order dated 24.06.2016. While dismissing the application of

plaintiff, the trial court allowed the plaintiff to take part in the proceedings

without a right to cross examine the witnesses of the defendants and

without a right to produce her own witnesses. It is this order which is under

challenge before this Court.

6. It is contended in the petition that the impugned order passed by the

trial court has resulted in serious miscarriage of justice as the plaintiff has

been debarred from defending the counter claim. It is also contended that

the plaintiff being a parada-nisheen woman, was not aware about the

proceedings of the suit and because the matter between the parties had

been settled, as such, she under a bonafide belief did not pursue her suit. MOHAMMAD ALTAF BHAT 2021.10.05 12:48 I attest to the accuracy and integrity of this document

7. I have heard learned counsel for the petitioner and perused the

material on record.

8. As already noted, the suit of the plaintiff was dismissed for default

for appearance of plaintiff on 02.11.2013. The defendant No.1 had filed

a counter claim which came to be listed for further proceedings after the

dismissal of the suit. The written statement along with counter claim was

filed by the defendant No.1 in the year 2010 itself. Till the year 2013,

when the plaintiff stopped appearing in the case, she did not take trouble

to file a written statement to the counter claim of defendant No.1.

9. Rule 6-G of Order VIII of the Code of Civil Procedure provides that

the rules relating to a written statement by defendant shall apply to written

statement filed in answer to a counter claim. Rule 1 of Order VIII provides

that the defendant has to file written statement of his defence within thirty

days from the date of service of summons on him. Proviso to the said Rule

gives discretion to a Court to extend the aforesaid period up to ninety days

from the date of service of summons, that too for the reasons to be

recorded in writing.

10. In the instant case, the counter claim was filed by defendant No.1

in the year 2010. The plaintiff did not choose to file a written statement to

said counter claim even up to the year 2013 when her suit was dismissed

for default of appearance. She woke up from slumber only in the year 2015

and made an application before the trial court seeking permission to file

the written statement. The trial court has rightly declined the prayer of the

plaintiff for permission to file written statement to the counter claim as it MOHAMMAD ALTAF BHAT 2021.10.05 12:48 I attest to the accuracy and integrity of this document

had no jurisdiction to extend the time to file written statement beyond

ninety days. Even otherwise the reasons assigned by the plaintiff which

prevented her from filing the written statement within the stipulated time

were far from being plausible.

11. However, there is yet another aspect of the matter. The learned trial

court while declining the request of the plaintiff to file written statement

to the counter claim has permitted the plaintiff to participate in the

proceedings but without right to cross-examine the witnesses of defendant

No.1. The question arises as to whether the direction of trial court whereby

plaintiff's right to cross examine the witnesses of the defendant No.1 has

been declined is in accordance with law.

12. Rule 6-E of Order VIII takes care of a situation where plaintiff fails

to file a written statement to the counter claim. It reads as under:

"6-E. Default of plaintiff to reply to counter-claim.--If the plaintiff makes default in putting in a reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit.

13. From a bare perusal of the aforesaid provision it is revealed that if

the plaintiff makes default in filing reply to the counter claim, the Court

may either pronounce judgment against the plaintiff or make such other

order in relation to the counter claim, as it thinks fit.

14. In the instant case, a perusal of the record of minutes of the

proceedings of trial court, certified copies whereof have been placed on

record, reveals that the trial court has not resorted to pronouncement of

MOHAMMAD ALTAF BHAT 2021.10.05 12:48 judgment against the plaintiff but it has proceeded ahead and recorded I attest to the accuracy and integrity of this document

statements of witnesses of the defendant No.1. Once this course was

adopted by the learned trial court, it was not open to it to decline plaintiff

to participate in the proceedings with a right to cross examine the

witnesses of the defendant even after her right to file the written statement

had been closed. It becomes an empty formality if a party is allowed to

participate in the proceedings but is not allowed to cross examine the

witnesses of the adverse party. Participation in proceedings means that the

party concerned is entitled to do everything including cross-examination

of witnesses of adverse party from the stage the party chooses to

participate in the proceedings. The participation of a party in the

proceedings does not mean that it would only watch the proceedings.

Participation means something more i.e., right to cross examine the

witnesses of adverse party.

15. This Court in the case of Karam Chand Thapper v. Manzoor

Ahmad, 2005(1) JKJ [HC] 567, had an occasion to interpret the provisions

of Order 9 Rule 6 of CPC and it was laid down that the defendant, if he

chooses to proceed from a particular stage, he will have an absolute right

without obtaining the Courts permission to take part in the proceedings.

Para 10 of the said judgment is relevant to the context and the same is

reproduced as under:

"10. Order 9 Rule 6 provides procedure when only plaintiff appears and the defendant does not appear when the suit is called on for hearing. If it is proved that the summons were duly served on the defendant the court may make an order that the suit be heard ex-parte. Remedy for such a defendant is given in Order 9 Rule 7 which provides procedure where such defendant appears on the next day fixed for hearing and assigns good cause for previous non-

MOHAMMAD ALTAF BHAT 2021.10.05 12:48 appearance. The rule covers the case of the I attest to the accuracy and integrity of this document

defendant who did not appear at all on the first hearing and the suit was adjourned after declaring him ex-parte. The rule is applicable if the defendant wants the court to retrace it's steps and to allow him to file written statement. But if the defendants wants to proceed from the stage already reached he will have an absolute right without obtaining the court's permission to take part in the proceeding. There is much confusion in the subordinate courts on such a procedure. If any substantial proceedings have been taken by the court in absence of the defendant, the defendant has a right to ask the court to retrace its steps and set aside the ex-parte proceedings and allow him to join the proceedings right from the date when ex-parte proceedings were initiated against him and if in such case the defendant shows a good cause, the court has to set aside the ex-parte proceedings and allow the defendant to take part in the proceedings right from the beginning. If, however, no substantial proceedings have been taken during the period ex-parte proceedings are taken and the defendant appear or if any proceeding has taken place but the defendant finds that the same is not adverse to him and he need not get it reversed, he may join the proceedings from the stage when he appears before the court and in such a case he need not to seek the permission of the court to take part in the proceeding. By his mere appearance he gets a right to join the proceedings. The court cannot in such circumstances burden him with costs as is being generally done in such cases by the sub-ordinate courts. Rule 7 invests the court with the widest possible discretion to accept the written statement even where a defendant who was declared ex-parte for absence assigns good cause.

16. Thus, it is clear that in the instant case, the plaintiff has an absolute

right to participate in the proceedings from the stage she choses to do so

and she has also an absolute right to cross examine witnesses of the

defendant/counter claimant. The direction made by the trial court in the

impugned order curtailing right of the plaintiff to cross examine the

witnesses of the defendant No.1 is not in accordance with law and is, as

such, liable to be set aside.

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17. A perusal of the minutes of the proceedings reveals that the

defendant/counter claimant has already examined his witnesses during the

pendency of this petition. Having held that the refusal of permission to

plaintiff to cross examine the witnesses of the defendant No.1 is not in

accordance with law, the plaintiff has to be permitted to cross examine

those witnesses of the defendant who have been examined after the

plaintiff started participating in the proceedings before the trial court, so

as to vindicate her right of participation in the proceedings.

18. For the foregoing reasons, the petition is partly allowed. The

impugned order to the extent of refusal of permission to the petitioner to

file written statement to the counter claim is upheld. However, the

direction made in the impugned order declining petitioner the right to

cross examine witnesses of the defendant No.1 is set aside. The trial court

is directed to permit the petitioner/plaintiff to cross examine those

witnesses of the defendant No.1 whose statements have been recorded

after the date of participation of the petitioner/plaintiff in the proceedings.

All those witnesses shall be recalled by the trial court and the

petitioner/plaintiff shall be given an opportunity to cross examine these

witnesses whereafter the trial court shall dispose of the counter claim in

accordance with law.

19. The petition stands disposed of.

(Sanjay Dhar) Judge Srinagar 29.09.2021 "Bhat Altaf, PS"

MOHAMMAD ALTAF BHAT
                                         Whether the order is speaking:        Yes/No
2021.10.05 12:48
I attest to the accuracy and
                                         Whether the order is reportable:      Yes/No
integrity of this document