Sukhdev Rajak vs Smt. Durgabai
2023 Latest Caselaw 11714 MP

                                                       1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                             ON THE 26 th OF JULY, 2023
                                           MISC. PETITION No. 3389 of 2023

                          BETWEEN:-
                          1.    SUKHDEV RAJAK S/O NOT MENTION, AGED
                                ABOUT 55 YEARS, OCCUPATION: LABOUR

                          2.    JAGDEV RAJAK S/O LATE SHRI DHANIRAM
                                RAJAK, AGED ABOUT 45 YEARS, OCCUPATION:
                                LABOUR

                          3.    SMT. BHAGWAT BAI D/O LATE SHRI DHANIRAM
                                RAJAK, AGED ABOUT 57 YEARS,
                                ALL RESIDENT OF GRAM SALIWADA, POST
                                BARGI P.S. BARGI DIST. JABALPUR (M P)

                                                                             .....PETITIONERS
                          (BY SHRI VASU JAIN - ADVOCATE )

                          AND
                          1.    SMT. DURGABAI W/O LATE SHRI SHANKARLAL
                                RAJAK, AGED ABOUT 78 YEARS, HOUSE NO. 205
                                SHAKTI NAGAR RAJAK MOHALLA SHAHID
                                GULAB SINGH WARD DIST. JABALPUR (M P)

                          2.    KIRAN RAJAK D/O BHAGWANDAS RAJAK, AGED
                                ABOUT 17 YEARS, OCCUPATION: THROUGH
                                GUARDIAN SMT. DURGABAI R/O H.NO. 205,
                                SHAKTI NAGAR, RAJAK MOHALLA, SHAHID
                                GULAB SINGH WARD, DISTRICT WARD (M P)

                          3.    ASHOK RAJAK S/O LATE SHRI SAHNKERLAL
                                RAJAK, AGED ABOUT 44 YEARS, R/O H.NO. 205,
                                SHAKTI NAGAR, RAJAK MOHALLA, SHAHID
                                GULAB SINGH WARD, DISTRICT WARD (M P)

                          4.    SMT. DUJABAI W/O LATE SHRI ARJUN SAHU,
                                AGED ABOUT 60 YEARS, GRAM SALIWADA POST
                                BARGI P.S. BARGI DIST. JABALPUR (M P)

                          5.    BABLU @ JAGDISH S/O LATE SHRI ARJUN RAJAK,
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 7/27/2023
10:43:30 AM
                                                          2
                                AGED ABOUT 40 YEARS, GRAM SALIWADA POST
                                BARGI P.S. BARGI DIST. JABALPUR (M P)

                          6.    RAGHUVIR S/O LATE SHRI ARJUN RAJAK, AGED
                                ABOUT 38 YEARS, GRAM SALIWADA POST BARGI
                                P.S. BARGI DIST. JABALPUR (M P)

                          7.    THE STATE OF MADHYA PRADESH, THROUGH
                                COLLECTOR, JABALPUR DISTRICT JABALPUR (M
                                P)

                                                                                       .....RESPONDENTS
                          (BY SHRI GAJENDRA PARASHAR - PANEL LAWYER FOR STATE)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

This miscellaneous petition has been preferred by petitioners/defendants 1-3 challenging the impugned order dated 28.11.2022 passed by 4th Civil Judge, Junior Division, Jabalpur in RCSA No.569/2021 whereby learned Court below in the suit instituted on 15.06.2021 has closed right of written statement of the defendants 1-3.

2. Placing reliance on the decision of Supreme Court in the case of Bharat Kalra vs. Raj Kishan Chabra 2022 SCC Online SC 613, learned counsel for the petitioners submits that the instant suit being for declaration of title and permanent injunction filed in respect of the agriculture land, which remained pending for consideration of application under Order 39 rule 1 & 2 CPC which was decided vide order dated 31.03.2022, one more opportunity to file the written statement as prayed on 20.11.2022 by counsel appearing for the defendants ought to have been granted. He submits that he is ready with the written statement, a copy of which has been placed before this Court today (which does not contain verification clause and requires amendment). He further submits that because evidence of the plaintiffs has yet not commenced, Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 7/27/2023 10:43:30 AM

therefore, no prejudice shall be caused to the plaintiffs if the written statement is taken on record and for delay the plaintiffs can be compensated by imposition of cost on the defendants.

3. The complete order of Supreme Court in the case of Bharat Kalra (supra) is quoted as under:-

"1. Leave granted.

2. The challenge in the present appeal is to an order passed by the High Court on 12.08.2021 whereby delay of 193 days in filing of the written statement was not condoned.

3. Admittedly, the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Act, 2015. Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as 'Kailash V. Nankhu & Ors.' reported in (2005) 4 SCC 480.

4. In view of the aforesaid judgment, we find that the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing of the written statement is unreasonable.

5. Consequently, we allow the present appeal. The order passed by the High Court is set aside. The written statement already filed is taken on record.

6. We do hope that the trial Court shall expedite the decision of the suit keeping in view the old age of the plaintiff.

7. Pending application(s), if any, also stand disposed of."

4. Heard learned counsel for the defendants/petitioners.

5. Learned counsel for the defendants/petitioners has informed that before the

Court below date 04.08.2023 is fixed for evidence of the plaintiffs. In the present case learned Court had decided the application under Order 39 rule 1 & 2 CPC on 31.03.2022 and thereafter, the case was listed for written statement of the defendants.

6. However, record shows that sufficient opportunities have been given to the defendants but in view of the fact that even after closure of right of written Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 7/27/2023 10:43:30 AM

statement of the defendants, the civil suit is at the stage of evidence of the plaintiffs, which has not yet commenced, therefore, in the light of decision of Supreme Court in the case of Bharat Kalra (supra), one more opportunity deserves to be granted to the defendants/petitioners to file the written statement, which they may file on the next date i.e. 04.08.2023 subject to payment of cost of Rs.10,000/- (Rs. Ten thousand) payable to the plaintiffs, which shall be a condition precedent to take the written statement on record.

7. As such, this miscellaneous petition is disposed off with the observation that if the petitioners/defendants file the written statement along with application for taking the written statement on record with the prayer for condonation of delay supported by affidavit on the next date i.e. 04.08.2023, the learned trial Court shall take the written statement on record, failing which the impugned order shall remain intact.

8. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 7/27/2023 10:43:30 AM