Rattan Singh vs Mangat Ram and others

J.V. Gupta, J.—This petition is directed against the order of the trial Court dated 21-11-1988 whereby the application filed by the Defendant-Petitioner to allow him to file the written statement, was declined.

The Plaintiff filed a suit for declaration. The Defendant-Petitioner Rattan Singh was served and was proceeded-ex-parte vide order dated 8-6-1987. For seating aside the ex-parte order application was filed on 19-8-1987, which was dismissed on 11-11 1987. The Defendant moved the present application that he may be allowed to file the written statement as no written statement has been filed even by the other Defendants. That application was contested on behalf of the Plaintiff and the trial Court declined the same with the observations that the cannot be allowed to file written statement at this stage because the previous order of my learned predecessor dated 11-11-1987 is still existing. No appeal or revision has been filed against the said orders and the parties are bound by the same".

Learned Counsel for the Petitioner submitted that when this application was filed written statement was yet to be filed by the other Defendants and, therefore, in view of the provisions of Order 9 Rule 7 CPC he should have been allowed to file the written statement. In support of his contention he referred to Smt. Dipo and Ors. v. Kulwant and Ors. 1977 Rev. L.R. 448. On the other hand, learned Counsel for the Respondent submitted that since the Petitioner did not file any revision etc against the order dated 11-11-1987 he could not move the present application for filing the written statement.

After hearing the learned Counsel for the parties, I find merit in this petition. Order 9 Rule 7 CPC reads as under:

Where the Court has adjourned the hearing of the suit ex-parte, and the Defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

It is not disputed that when the present application for permission to file the written statement was made the other Defendant was yet to file his written statement. That being so, the Petitioner could be allowed to file his written statement on payment of costs in view of the above said provisions. Moreover, the suit is yet at the preliminary stage and it has been stated at the bar that the next date is fixed for the Plaintiff''s evidence. In these circumstances, it is directed that the Defendant-Petitioner be allowed to file his written statement on payment of Rs. 300/- as costs. He will file the said written statement and pay the costs on the next date of hearing. On that day, the witnesses present will be examined by the Court and the Defendant-Petitioner would be entitled to cross-examine them. In case, the costs are not paid and the written statement is not filed on that day, this petition will stand dismissed. It is disposed of accordingly.