Kusuma Devi vs Ram Shankar

Ram Surat Ram (Maurya), J.—Heard Sri Ganesh Dutt Mishra along with Sri Aditya Kumar Tripathi, for the petitioner and Sri Kamal Dev Rai, for contesting respondent-1. In the facts of the case, the counsel for the respondent does not propose to file counter affidavit and with the consent of the parties, petition is decided finally.

This petition has been filed for setting aside the orders of Civil Judge (Senior Division) dated 01.12.2015, rejecting application of the petitioner for accepting written statement and order of Additional District Judge dated 01.12.2015 dismissing the revision of the petitioner against the aforesaid order.

Ramesh Chandra (now represented by respondent-3) and Ram Shankar (respondent-1) filed a suit (registered as O.S. No. 158 of 2001) for partition of the house in dispute. Respondent-1 took plea that house in dispute was his ancestral house coming from the time of common ancestor Bhadai. After death of Bhadai, it was inherited by his two sons Shadhu Ram and Moti Lal. Sadhu Ram left behind him three sons namely Ram Prasad, Ramesh Chandra and Ram Shankar. Moti Lal left behind him his son Radhe Lal who left behind two sons Ajay Kumar and Gore Lal. There had been private partition between Sadhu Ram and Radhe Lal, in which house in dispute came in share of Sadhu Ram and a memorandum of partition was prepared on 16.10.1976. As such the plaintiffs had ⅔ share and Ram Prasad (defendant-1) had ⅓ share. During pendency of the suit Ramesh Chandra executed a sale deed dated 25.09.2006 of his share in favour of Smt. Ganga Devi as such Ramesh Chandra was transposed as defendant-3 and Smt. Ganga Devi was impleaded as defendant-4. Kusuma Devi (defendant-2) is transferee of Ram Prasad (defendant-1).

The petitioner appeared before Trial Court on 10.05.2004 and filed an application (32-C) for directing the plaintiffs to file original partition deed dated 16.10.1976 in the court, which was allowed by Trial Court by order dated 10.05.2005 and the plaintiffs were directed to produce original partition deed dated 16.10.1976 in the court. On that day summons were not served upon defendant-1, as such fresh summons were issued. The plaintiff filed an application (27-C) for recalling order dated 10.05.2004 and exempting them from filing original partition deed dated 16.10.1976 in the court. Trial Court heard the application (37-C) on 20.09.2010 and in stead of recalling order dated 10.05.2004, its operation was suspended till further order.

In the meantime, Ramesh Chandra died and the plaintiff moved an application (68-Ka) for making a note as "deceased". Trial Court allowed this application by order dated 04.10.2011. Thereafter the case was taken up on 24.11.2011, Trail Court found that defendants had not filed written statements by as such he fixed 22.12.2011 for hearing under Order 8, Rule 10 C.P.C.

The petitioner filed an application (78-C) dated 01.02.2012 along with her written statement for taking written statement on record. The petitioner has stated that on her application, Trial Court by order dated 10.05.2004 directed the plaintiff to file original partition deed dated 16.10.1976, which was basis of the suit. However, Trial Court by subsequent order dated 20.09.2010 suspended operation of order dated 10.05.2004 till further order. The petitioner was a pardanashin lady. Her husband is in U.P. Police service and posted outside Etawah as such written statement could not be filed within time. Delay in filing written statement be condoned and written statement be taken on record. Trial Court after hearing the parties, by order dated 13.03.2012 rejected the application (78-C) of the petitioner. The petitioner filed a revision (registered as Civil Revision No. 31 of 2012) from aforesaid order. Additional District Judge dismissed the revision by order dated 01.12.2015. Hence this petition has been filed.

I have considered the arguments of counsel for the parties and examined the record. Order 8, Rule 1 Proviso C.P.C. has no application as this suit was filed on 04.07.2001 and Proviso has been inserted w.e.f. 01.07.2002. According to Order 8, Rule 1 C.P.C. (as it existed prior to 01.07.2002) the defendant shall, at or before the first date of hearing or within such time as the court may permit, present a written statement. Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350, held that Order 8 C.P.C. deals with "written statement, set-off and counter-claim". We would like to state, by way of clarification, that the provisions of C.P.C. which are being considered herein are as amended by Act 104 of 1976 only (excluding from consideration the amendments incorporated by Act 46 of 1999 with effect from 1-7-2002). According to Rule 1 Order 8 the defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defense.

Even Proviso to Rule 1 Order 8 C.P.C. has been held as directory. Supreme Court in Kailash v. Nanhku, AIR 2005 SC 2441, held that it is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts.

In the present case, the petitioner has appeared before Trial Court on 10.05.2004 and filed an application (32-C) for directing the plaintiffs to file original partition deed dated 16.10.1976 in the court, which was allowed by the Trial Court and the plaintiffs were directed to produce original partition deed dated 16.10.1976 in the court. On that day summons were not served upon defendant-1 as such no date for hearing was fixed. Trial Court by order dated 10.05.2004 directed the plaintiff to file original partition deed dated 16.10.1976, which was basis of the suit. However, Trial Court by subsequent order dated 20.09.2010 suspended operation of order dated 10.05.2004 till further order. The petitioner was a pardanashin lady. Her husband in U.P. Police service and posted outside Etawah as such written statement could not be file within time. Delay in filing written statement was liable to be condoned and written statement be taken on record. This Court in Smt. Durga Devi Maheshwari v. State of U.P., 2005 (99) RD 38 held that the defendant has right to seek full particular from the plaintiff to enable him to file his effective defense. In the absence of original partition deed dated 16.10.1976, which was basis of the suit, effective written statement could not be filed. This case was cited before Trial Court, even then it has been ignored.

In the result, this petition succeeds and is allowed. The orders of Civil Judge (Senior Division) dated 01.12.2015, and Additional District Judge dated 01.12.2015, are set aside. Delay in filing written statement is condoned. Trial Court is directed to take written statement on record and proceed with the hearing of the suit in accordance with law.