Harinder Kumar vs Mangeshwar Kumar and Others

L.N. Mittal, J.—Defendant no. 4 - Harinder Kumar has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India to assail order dated 16.03.2012 (Annexure P-3) passed by the trial court, thereby dismissing application (Annexure P-1) filed by defendant no. 4. Suit has been filed by respondent no. 1 - plaintiff against petitioner and performa respondents no. 2 to 6. In the suit, joint written statement was filed on behalf of defendants no. 3 to 5. However, the said written statement was signed by defendant no. 3 only. Defendant no. 4, in his application (Annexure P-1), alleged that inadvertently, he could not sign the written statement for himself as well as being guardian of defendant no. 5, who was then minor. Accordingly, permission was sought to sign the written statement.

Plaintiff, by filing reply (Annexure P-2), opposed the application and pleaded that defendant no. 4 cannot be permitted to fill lacuna in his case because the written statement cannot be read on behalf of defendants no. 4 and 5.

Learned trial court, vide impugned order (Annexure P-3), dismissed the application (Annexure P-1) filed by defendant no. 4, who has therefore filed this revision petition to assail the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner, relying on judgment of Hon''ble Supreme Court in the case of Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Another, , contended that defect of not signing the pleading due to bona fide error can be permitted to be rectified either by the trial court at any time before passing of judgment or even by the appellate court, when such defect comes to its notice during hearing. It was thus argued that the petitioner should have been allowed to sign the written statement by the trial court. No judgment to the contrary has been cited by counsel for respondent no. 1-plaintiff.

In the instant case, the trial court has dismissed the application filed by defendant no. 4 primarily on the ground of delay. However, the application could not be dismissed on the ground of delay alone because the defect of not signing the written statement by defendant no. 4 apparently came to his notice, when question in this regard was put in cross-examination of the witnesses. Moreover, Hon''ble Supreme Court in the case of Uday Shankar Triyar (supra) has held that such defect can be allowed to be rectified at any time before judgment or even by the appellate court. Consequently, in the instant case, the trial court should have permitted the petitioner to sign the written statement and plaintiff could be compensated by way of costs. Impugned order of the trial court, therefore, suffers from illegality and jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order (Annexure P-3) passed by the trial court is set aside. Application (Annexure P-1) filed by defendant no. 4 - petitioner is allowed and he is permitted to sign the written statement (already filed on behalf of defendants no. 3 to 5) for himself as well as for defendant no. 5, who was then minor, subject to payment of Rs. 5,000/- as costs precedent.