Choturam vs Baburam
2022 Latest Caselaw 13354 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 939/2015

Choturam S/o Shri Manglaram, aged about 50 years, B/c Mali, R/o Village Khokri, Bhabha Wala Bera, Tehsil and District Jodhpur (Raj.)

----Petitioner Versus Baburam S/o Shri Punaram, aged about 57 years, B/c Mali, R/o Village Binjawadiya, Tehsil Osian, District Jodhpur.

                                                                ----Respondent


For Petitioner(s)        :     Mr. Paramveer Singh
For Respondent(s)        :     Mr. HS Balot



          HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                    Order

14/11/2022

     Heard learned counsel for the parties.

The present writ petition has been filed against the order

dated 15.10.2014 passed by Additional District Judge No. 2,

Jodhpur Metropolitan, whereby the application preferred by the

petitioner under Order 7 Rule 11 read with Section 151 CPC was

rejected and filing of the written statement by the petitioner was

closed.

Learned counsel for the petitioner submits that respondent

preferred a suit before the trial court for recovery of the money

due from the petitioner and the learned trial court vide order

dated 12.09.2012, rejected the application preferred by the

petitioner under Order 9 Rule 11 CPC for setting aside the ex parte

judgment and decree dated 25.11.2005. Against the rejection of

the application under Order 9 Rule 11 CPC, the petitioner

(2 of 4) [CW-939/2015]

preferred S.B. Civil Misc. Appeal No. 2218/2012 before this Court

and the same was allowed vide order dated 09.05.2014. The

parties were directed to appear before learned trial court and the

learned trial court was directed to proceed with the suit from the

stage of service of summons and was also directed to decide the

same within a period of one year. In these circumstances, the

parties appeared before the learned trial court and the petitioner

preferred an application under Order 7 Rule 11 CPC. While

deciding that application, the learned trial court vide impugned

order dated 15.10.2014, closed the filing of written statement by

the petitioner. Aggrieved of the same, the present writ petition has

been filed.

Learned counsel for the petitioner submits that in view of the

Judgment of this court in Laxmi Narayan Sharma Vs.

Rajeshree Khandewal reported in 2018 1 WLN 196 decided

on 17.10.2016 and in Vijay Raj Vs. Shankar Lal reported in

2016 3 WLN 128 decided on 25.01.2016, the learned trial court

while deciding the application preferred under Order 7 Rule 11

CPC cannot close the filing of the written statement by the

petitioner. He, therefore, prays that the writ petition may be

allowed, the order dated 15.10.2014 may be quashed and set

aside and the learned trial court may be directed to grant an

opportunity to the petitioner to file written statement before

proceeding with the matter.

Per contra, learned counsel for the respondent vehemently

opposes the submissions made before this court and submits that

the suit is pending consideration before learned trial court since

the year 2005 and the petitioner just to avoid the payment of the

(3 of 4) [CW-939/2015]

amount due to the respondent is lingering on the suit proceedings

on one count or the other.

Learned counsel for the respondent, while supporting the

order passed by the learned trial court on 15.10.2014, submits

that no further opportunity may be granted to the petitioner for

filing the written statement as the suit is pending consideration

before the learned trial court since the year 2005. Learned counsel

for the respondent further submits that even after the expiry of 90

days, the written statement has not been filed by the petitioner.

I have considered the submissions made at the Bar and have

gone through the order dated 15.10.2014 and other relevant

record of the case.

The fact of the matter that the suit for recovery of the

money due is pending consideration before the learned trial court

since the year 2005 is admitted by both the sides and in those

proceedings, despite the direction having been given by this court

on 09.05.2014, the matter is still pending consideration before the

trial court and the same has not been decided so far. It is also

noted that vide order dated 15.10.2014 while deciding the

application preferred by the petitioner under Order 7 Rule 11 CPC,

the learned trial court has closed the opportunity of filing of the

written statement by the petitioner.

It is a settled law that while deciding the application under

Order 7 Rule 11 CPC, the learned trial court shall not pass any

order for closing the written statement on behalf of the

respondent, more particularly, in view of the judgment of this

court in the case of Laxmi Narayan (supra) and Vijay Raj (supra).

In view of the discussions made above, the impugned order

dated 15.10.2014 is not sustainable and the same is, therefore,

(4 of 4) [CW-939/2015]

quashed. However, this court also takes note of the fact that since

the suit is pending consideration since the year 2005, therefore,

the petitioner is directed to file the written statement within a

period of 10 days from today. If the written statement is filed

within a period of 10 days from today, the learned trial court shall

take the same on record and proceed with the matter. Learned

trial court is further directed to conclude the proceedings and

decide the suit itself within a period of six months from today.

It is made clear that the order passed by the learned trial

court rejecting the application preferred by the petitioner under

Order 7 Rule 11 is upheld to that extent.

The writ petition so also the stay petition stands disposed of

in the terms above.

(VINIT KUMAR MATHUR),J 68-nitin/-

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