Raghuraj Sharan Sharma vs Urmila Devi

Janardan Sahai, J.—The suit gives rise to the present revision was filed by the plaintiffrespondent on 111988 for ejectment and arrears of rent. In the said suit an application for filing written statement was allowed on payment of costs on 1521988. However, on 541988 as the written statement has not been filed and the defendant was absent and application for adjournment filed by him was rejected, the Court passed an order fixing the case for exparte hearing on 2641988. Against the order dated 541988 a revision was filed in this Court. The revision was dismissed. After dismissal of the revision, an application 67 (Ga) was filed by the defendant seeking that he may be permitted to adduce evidence. The Vth Additional District Judge by the impugned order dated 2231993 rejected the said application in part and permitted the defendant to lead evidence only in rebuttal of the plaintiff''s evidence and refused to allow the defendant to adduce evidence on any case of his own. The Court below also considered the authorities of the Supreme Court in the case of Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993, and other cases in which it has been held that a defendant can be allowed to participate even an order of exparte has been passed against him when he entered appearance. However, he will not be allowed to set the clock back. The Vth Additional District Judge also rejected the application of the defendant for filing a copy of judgment and decree regarding the rat c of rent etc.

I have heard Shri K.S. Chauhan, learned Counsel for the applicant and Shri Rajiv Gupta, learned Counsel for opposite party. It is admitted that no evidence has been led in the suit.

Mr. Chauhan, learned Counsel for the applicant submitted that defendant is entitled to lead evidence and also to file a written statement as no evidence has been led and filing of written statement at this stage will not amount to setting the clock back and especially as no order for forfeiting his right to file written statement has been passed under Order VIII, Rule 10 of C.P.C. He has relied upon AIR 1964 Supreme Court 993 and AIR 1969 Orissa 61. He has also relied upon a decision in the case of Ramesh Chandra Bhattarcharya v. Corporation of Calcutta and others, reported in AIR 1987 Cal 111. The question involved in that case was whether the trial Court has power to entertain the written statement after completion of the exparte hearing of the suit and at the stage when the matter was fixed for delivery of judgment. After considering the various authorities including the decisions in the case of Sadaram v. D.D. Authority, reported in AIR 1974 Delhi 35, and Mathew Elengical v. N.R.C.D., Corporation, reported in AIR 1978 Madhya Pradesh 39, the Calcutta High Court held that even at the stage when the ex parte hearing was concluded and the Court has fixed a date for delivery of judgment, the Court can still exercise its discretion in allowing the defendant to file written statement.

Shri Rajiv Gupta, learned Counsel for respondent, on the other hand, submits that in the present case, the trial Court had exercised its discretion in refusing opportunity to the defendant. He further submits that in case opportunity is given to the applicant to file written statement and to adduce evidence, the interest of the plaintiff be protected considering the fact that the suit was filed in the year 1988.

In the impugned order, it has also been held that the papers sought to be filed by the applicant were not relevant. The matter relating to evidentiary value of the papers and their admissibility and relevance shall be considered by the Court below at the time of hearing. The papers cannot be rejected at this stage on the ground given by the trial Court. They shall be taken on record subject to any other objection.

The record shows that the order to proceed expane had been passed on 541988, very shortly after the suit itself was instituted in January 1988. There is nothing on record to indicate that the defendant was adopting dilatory tactics. The plaintiff has also not led evidence. In the circumstances the interest of justice will be met by giving the defendant an opportunity to file written statement and to adduce evidence and to compensate the plaintiff by costs. Accordingly applicantdefendant is granted opportunity to file written statement before the Court below by 3052001. The defendant will have opportunity to adduce evidence in support of his case on payment of costs of Rs. 4,000/which will be paid to the plaintiff. Shri Chauhan learned Counsel for the applicant undertakes that his client will file written statement by 3052001 and will also deposit costs by that date. In case the written statement is not filed by that date or the costs are not deposited in the trial Court by that date, the liberty granted to the defendant shall by this order shall be deemed to have been refused and the impugned order of the trial Court shall stand. I also direct that the trial Court shall proceed to decide the suit expeditiously preferably within a period of six months. The counsel for the defendant undertakes that his client will not take any adjournment and will cooperate in the hearing of the suit.

With these observations/directions this revision is allowed. The order of the learned Vth Additional District Judge, Ghaziabad dated 2231993 is set aside.

Let a certified copy of this order be supplied to the learned Counsel for the parties within five days. Revision allowed.