Balaram vs Dayaram
2023 Latest Caselaw 18041 MP

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                     AT INDORE
                          BEFORE
              HON'BLE SHRI JUSTICE VIVEK RUSIA
                  ON THE 30 th OF OCTOBER, 2023
                  MISC. PETITION No. 3720 of 2023

BETWEEN:-
1.    BALARAM S/O MANGAJI AGLECHA, AGED ABOUT
      68    YEARS, OCCUPATION: AGRICULTURIST
      VILLAGE BILWANI, TEHSIL RAJPUR, DISTT.
      BARWANI (MADHYA PRADESH)

2.    LUNAJI S/O BHIKAJI AGLECHA, AGED ABOUT 55
      YEARS, OCCUPATION: AGRICULTURIST VILLAGE
      BILWANI TEHSIL RAJPUR DISTRICT BARWANI
      (MADHYA PRADESH)

3.    PAWAN S/O BALARAM AGELCHA, AGED ABOUT 33
      YEARS, OCCUPATION: AGRICULTURIST VILLAGE
      BILWANI TEHSIL RAJPUR DISTRICT BARWANI
      (MADHYA PRADESH)

                                                    .....PETITIONER
(BY SHRI SHIVAM BHARGAV, ADVOCATE)

AND
1.    DAYARAM S/O MANAJI PARIHAR, AGED ABOUT
      58    YEARS, OCCUPATION: AGRICULTURIST
      VILLAGE BILWANI, TEHSIL RAJPUR, DISTT.
      BARWANI (MADHYA PRADESH)

2.    KISHAN S/O GUMNAJI PARIHAR, AGED ABOUT 53
      YEARS, OCCUPATION: AGRICULTURIST VILLAGE
      BILWANI TEHSIL RAJPUR DISTRICT BARWANI
      (MADHYA PRADESH)

3.    STATE OF M.P. THROUGH COLLECTOR OFFICE OF
      THE COLLECTOR BARWANI (MADHYA PRADESH)

4.    SUB DIVISIONAL OFFICER RAJPUR, BARWANI,
      OFFICE OF THE SUB DIVISIONAL OFFICER
      RAJPUR DIST. BARWANI (MADHYA PRADESH)

5.    TEHSILDAR      TEHSILDAR OFFICE   OF   THE
                                   2
      TEHSILDAR  RAJPUR           DISTRICT       BARWANI
      (MADHYA PRADESH)

6.    SARPANCH GRAM PANCHAYAT BILWANI OFFICE
      OF THE GRAM PANCHAYAT BILWANI RAJPUR
      BARWANI (MADHYA PRADESH)

7.    SECRETARY GRAM     PANCHAYAT BILWANI
      OFFICE OF THE GRAM PANCHAYAT BILWANI
      RAJPUR BARWANI (MADHYA PRADESH)

                                                              .....RESPONDENTS
(NONE FOR THE RESPONDENTS)

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

The petitioners have filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 13.06.2023 passed by the Civil Judge, Junior Division, Rajpur, Barwani in RCSA No.3/2020.

02. Facts of the case reveal that the plaintiffs filed a suit for declaration and permanent injunction along with an application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908. The defendants appeared in suit and filed a reply to the application preferred under Order XXXIX Rules 1 & 2 of the CPC. Thereafter, the parties filed an application under Order XXVI Rule 9 of the CPC. The application under Order XXXIX Rules 1 & 2 of the CPC has not been decided till date. However, the application under Order XXVI Rule 9 has already been decided.

03. During pendency of all these proceedings, two years have wasted due to COVID - 19 Epidemic. The plaintiffs filed an application on 14.03.2023 stating that the defendants' right to file written statement be closed. Defendants filed written statement on 11.04.2023 which was objected by the plaintiffs and the learned Court by the impugned order, dismissed the application and took

the written statement on record. Hence, present petition is before this Court.

04. Learned counsel for the petitioners has placed reliance upon a judgment delivered in the case of Desh Raj v/s Balkishan (Dead) Through Proposed Legal Representative Ms. Rohini reported in (2020) 2 SCC 708.

05. The Apex Court has repeatedly held that filing of written statement within 90 days is not mandatory but directory in nature. It is not a case that defendants were totally inactive in the suit proceedings. Immediately, he appeared and filed the reply to the application preferred under Order XXXIX Rules 1 & 2 of the CPC, which has not been decided till date and the application under Order XXVI Rule 9 has also been filed. The issues have not been framed because the written statement is not filed. The plaintiffs' application under Order XXXIX Rule 1 & 2 is still pending since last three years, therefore, the right to file written statement is not liable to be closed. The Court rightly dismissed the application. As the impugned order passed by the Court below does not suffer from any infirmity, hence, no case for interference is made out in the matter under Article 227 of the Constitution of India.

06. In view of the above, Miscellaneous Petition stands dismissed.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2023.10.31 17:45:33 +05'30'