Madhya Pradesh High Court
Ajim Khan vs Bismilla Bi on 20 December, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 20 th OF DECEMBER, 2023
MISC. PETITION No. 7394 of 2023
BETWEEN:-
AJIM KHAN S/O ALI HAIDER, AGED ABOUT 65 YEARS,
OCCUPATION: BUSINESS R/O 3 FAZALPURA CHAKKI KE
PASS WALI GALI UJJAIN (MADHYA PRADESH)
.....PETITIONER
(SHRI AJAY GUPTA, COUNSEL FOR THE PETITIONER .
AND
1. BISMILLA BI W/O LATE MOHAMMAD SALIM D/O
ALI HAIDER, AGED ABOUT 60 YEARS,
OCCUPATION: NIL R/O 3 RAMPRASAD BHARGAV
MARG TANKI CHOURAHA UJJAIN (MADHYA
PRADESH)
2. BABLI BEE D/O ALI HAIDER, AGED ABOUT 30
Y E A R S , OCCUPATION: HOUSEHOLD 3,
RAMPRASAD BHARGAVA MARG, TANKI
CHAURAHA, UJJAIN (MADHYA PRADESH)
3. ULAJAN W/O SHER GUL D/O ALI HAIDER, AGED
ABOUT 75 YEARS, OCCUPATION: HOUSEHOLD
WORK WAZIR PARK COLONY, UJJAIN (MADHYA
PRADESH)
4. FARID KHAN W/O ALI HAIDER DECEASED
THROUGH LRS. AND RUNNISA W/O LATE FARID
KHAN HAAL MUKAM MELA GROUND KE PASS,
SUSNER, DISTRICT AGAR. R/O PANCH BHAIRAV
KE PASS, GANDHI NAGAR, AGAR ROAD, UJJAIN
(MADHYA PRADESH)
5. FARID KHAN W/O ALI HAIDER DECEASED
THROUGH LRS. MOHAMMAD IBRAHIM HAAL
MUKAM MELA GROUND KE PASS, SUSNER,
DISTRICT AGAR. R/O PANCH BHAIRAV KE PASS,
GANDHI NAGAR, AGAR ROAD, UJJAIN (MADHYA
PRADESH)
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 20-12-2023
18:13:02
2
6. FARID KHAN W/O ALI HAIDER DECEASED
THROUGH LRS. RASHIDA W/O NASEEM KHAN
TIKKA HAAL MUKAM MELA GROUND KE PASS,
SUSNER, DISTRICT AGAR. R/O PANCH BHAIRAV
KE PASS, GANDHI NAGAR, AGAR ROAD, UJJAIN
(MADHYA PRADESH)
7. FARID KHAN W/O ALI HAIDER DECEASED
THROUGH LRS. SARTAJ BEE W/O ZUBER @
J A G M U HAAL MUKAM MUNIYAR BADI,
SHAJAPUR. R/O PANCH BHAIRAV KE PASS,
GANDHI NAGAR, AGAR ROAD, UJJAIN (MADHYA
PRADESH)
8. FARID KHAN W/O ALI HAIDER DECEASED
THROUGH LRS. RAZIA W/O FIROZ HAAL MUKAM
AHMED NAGAR AGAR ROAD, UJJAIN. R/O PANCH
BHAIRAV KE PASS, GANDHI NAGAR, AGAR ROAD,
UJJAIN (MADHYA PRADESH)
9. FARID KHAN W/O ALI HAIDER DECEASED
THROUGH LRS. SHABINA W/O GULU HAAL
MUKAM PADHAN TOLI, JAVRA, DISTRICT
RATLAM. R/O PANCH BHAIRAV KE PASS, GANDHI
NAGAR, AGAR ROAD, UJJAIN (MADHYA
PRADESH)
10. ZAFAR KHAN S/O ALI HAIDER, AGED ABOUT 55
YEARS, OCCUPATION: HAMMALI 3, RAMPRASAD
BHARGAVA MARG, TANKI CHAURAHA, UJJAIN
(MADHYA PRADESH)
11. ASLAM KHAN S/O ALI HAIDER, AGED ABOUT 50
YE A R S , OCCUPATION: BUSINESS BABUBHAI
WELDING WALE KA MAKAN, SUPER BAZAR, QAZI
CAMP, BHOPAL (MADHYA PRADESH)
12. SALMA BEE W/O LATE RAIS KHAN D/O ALI
HAIDER, AGED ABOUT 40 YEARS, OCCUPATION:
HOUSEHOLD WORK 3, RAMPRASAD BHARGAVA
MARG, TANKI CHAURAHA, UJJAIN (MADHYA
PRADESH)
13. TAHIRA BEE W/O ZAKIR HUSSAIN @ PAPPU D/O
ALI HAIDER, AGED ABOUT 35 YEARS,
OCCUPATION: HOUSEHOLD WORK BHERUNALA,
IMLIPURA, UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AJAY GUPTA, COUNSEL FOR THE PETITIONERS .
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 20-12-2023
18:13:02
3
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition is filed under Article 227 of the Constitution of India.
The petitioner is defendant No.3 in the suit. The plaintiffs filed a suit for
declaration of title, permanent injunction and partition. The defendant No.3 filed
an application under Order VII Rule 11 CPC on 8.11.2023. The said application
was rejected on the same date. The right of defendant No.3 to file written
statement and reply to application under Order XXXIX Rule 1 and CPC was
closed. Thereafter the petitioner-defendant No.3 filed an application under
Order 47 Rule 1 CPC. The same has also been rejected and thereafter the case
has been fixed for hearing on the application for temporary injunction today i.e.
20.12.2023.
2. Counsel for the petitioner submits that petitioner has been denied fair
opportunity to file the written statement. The application under Order VII Rule
11 CPC was rejected on the same date. His right to file written statement has
been closed. If the application for grant of temporary injunction is heard in
absence of written statement and reply to temporary injunction, a great prejudice
would cause to the petitioner.
3. After hearing learned counsel for petitioner and upon perusal of the
order, this Court is of the considered view that petitioner ought to have been
given fair opportunity to file written statement and reply to the application for
temporary injunction. The period prescribed for filing written statement under
Order 8 of the CPC has been held to be directive in nature and not mandatory.
The said view has been taken in number of judgments of the Apex Court. A
reference may be made to the judgments passed by the Apex Court in the cases
of R.N.Jadi Vs. Subhash Chandra, 2007(6) SCC 420, Mohd. Yusuf Vs. Fazi
Mohd. 2009(3) SCC 513 and by this Court in the case of S.K.Muddin Vs.
S.K.Nafees, 2003(4) MPHT 93.
4. In view of aforesaid, the present petition is allowed and the impugned
order dated 8.11.2023 so far as it relates to closing the right of the petitioner-
defendant No.3 to file written statement and reply to temporary injunction is set
aside. Trial court is directed to give opportunity of hearing to the petitioner to
file written statement and reply to application for temporary injunction.
5. Counsel for the petitioner-defendant No.3 submits that he will file
written statement and reply to the application for temporary injunction within 7
working days and shall not seek further adjournment in the matter.
6. Considering the aforesaid, trial court is directed to give 7 working days
time to the petitioner-defendant No.3 to file written statement and reply to the
application for temporary injunction and thereafter to decide the application for
temporary injunction. It is made clear that if the written statement and reply is
not filed within the said period, the trial court may decide the application for
temporary injunction in absence of reply of respondent No.3.
With the aforesaid, the petition is allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
MK
