Vivek Khajuria vs Wachaspati

Mr. Bansi Lal Bhat, J.—Petitioners, who figure as defendants No. 2 and 3 in civil suit for mandatory injunction filed by the respondent Dr.

Wachaspati before learned Sub-Judge (CJM) Udhampur are aggrieved of rejection of their written statement by the learned trial Court in terms of

its order dated 22.11.2014 on the ground that the same has been filed beyond the statutory period of 90 days. The challenge is thrown to the

impugned order dated 22.11.2014 by filing the instant petition in a composite form, i.e. petition under Sections 226 and 227 of Constitution of

India. The impugned order has been assailed on the ground that the suit came to be instituted on 10th June, 2014 and the petitioners were deemed

to be served on 7th July, 2014 while the written statement on behalf of petitioners came to be filed on 4th October, 2014; thus, the written

statement was filed well within 90 days from the date of service of petitioners.

Respondent has filed objections pleading therein that the petitioners have concealed material facts. It is pleaded that the trial Court had initiated

ex parte proceedings against the petitioners and subsequently they were allowed to take part in the further proceedings without taking their written

statements on record.

Heard learned counsel for the parties and perused the record.

It appears that the lis before the trial Court relates to a private dispute between individuals with regard to immovable property. Writ petition

under Article 226, without seeking enforcement of a constitutional, statutory or legal right against the State or a public authority would not be

maintainable. Furthermore, the Hon'ble Apex Court ruled in ""Radhey Shyam & Anr. v. Chhabi Nath & Ors."" reported in AIR 2015 SC

3269, that an order passed by Civil Court shall not be amenable to writ jurisdiction under Article 226 of Constitution. In view of the same, the

instant petition is found to be not maintainable in so far as relief claimed under Article 226 of Constitution of India is concerned. The consideration

of the petition would, thus, be limited to relief claimed under Article 227 of Constitution of India.

It has been laid down in a catena of authorities of the Hon'ble Apex Court that supervisory jurisdiction vested in this Court under Article 227 of

Constitution of India cannot be exercised on the drop of a hat. An exceptional case has to be made out for interference which would be warranted

if there is failure to exercise jurisdiction vested in Court, usurpation of jurisdiction not vested in Court or exceeding of jurisdiction resulting in failure

of justice. In the instant case, it emerges from record of trial Court that the petitioners figuring as defendants Nos. 2 and 3 in the suit filed by

respondent had reportedly refused service. They were set ex parte. This happened on 18.07.2014. Meanwhile, other defendants excluding

defendant No. 1 were being served. On 02.08.2014, Mr. Anil Khajuria, Advocate appeared on behalf of defendants 2 to 7 including the present

petitioners and filed his power of attorney. He sought adjournment for filing written statement which was allowed. Adjournments were also allowed

for such purpose on 23.08.2014 and 13.09.2014. The written statement on behalf of petitioners came to be filed but an objection was raised by

the respondent that since the petitioners had been set ex parte, their written statements could not be taken on record. The objection was sustained

in terms of the impugned order dated 22.11.2014 which has been assailed in the instant petition.

It is well settled that a defendant against whom ex parte proceedings have been set in motion can join the proceedings at any stage of the suit

and take part in proceedings from that stage onwards unless he is granted leave to relegate him back to the position that obtained on the day when

he was set ex parte. Admittedly in the instant case, petitioners joined proceedings when defendants other than them and defendant No. 1 were still

being summoned. The suit was at the stage of summoning of defendants Nos. 4 to 7. Defendant No. 1 had already joined the proceedings. Thus,

the stage of filing of written statement was not over. It is true that the petitioners have not filed a formal application for setting aside of ex parte

proceedings but they were permitted to join the proceedings and their plea for adjournment of the case for filing of written statement was allowed

thrice, as emanating from record. However, it remains a fact that there is no express order of setting aside of ex parte proceedings as against

petitioners on record. But that does not make any material difference. Once the trial Court not only permitted them to join the proceedings but also

acceded to their request for adjournment for filing of written statement and that too, not on one occasion but on three consecutive hearings, on the

third hearing last and final opportunity was granted to file written statement, it cannot be said that the ex parte order was not set aside. It is

manifestly clear that there is implied setting aside of ex parte proceedings. Likewise, it cannot be said that the adjournments for filing of written

statement were granted oblivious of the consequences of allowing such adjournments. This would imply that the Court was convinced of the

adequacy of reasons for allowing such adjournments. Holding otherwise, as the learned trial Court has tried to do through the medium of impugned

order, would mean that such orders were passed without application of mind. For obvious reasons that cannot be the true import of such orders.

Since there is no speaking order in regard to setting aside of ex parte proceedings against petitioners, it cannot be held that the period of

limitation for filing written statement or for computing the extended time would commence from the date of initial appearance of petitioners before

trial Court. The ex parte proceedings could be set aside for any good cause assigned and no sufficient cause was required to be shown. Once

prayer for adjournment for filing of written statement was granted and no substantial proceedings had been taken in absence of petitioners from the

date they had been set ex parte, petitioners were relegated back to the stage obtaining on the date when they were set ex parte. Admittedly no

hearing had taken place since then. In the given circumstances, grant of adjournments to the petitioners for filing written statement would operate as

a bar for the trial Court to reopen the issue though strictly speaking it may not attract the principle of res-judicata. The trial Court cannot be heard

to say that it had passed the orders in routine and that adequacy of reasons for seeking such adjournments was missing. Authorities cited by

respondents have no direct bearing on the issue and the same need not be adverted to.

In view of the foregoing reasons, this Court is of the considered opinion that the impugned order, if permitted to operate, would occasion failure

of justice. Taking off the record written statement of petitioners, that too when they have joined the proceedings immediately after passing of ex

parte order and that their defence has not been struck off, would be a travesty of justice and cause serious prejudice to the petitioners who have

already filed the written statement. It is indisputable that Civil Court encourages settlement of disputes on merits and technical formalities are not

allowed to defeat justice. The impugned order, thus viewed, cannot be supported and the same is set aside.

Disposed of along with connected MPs.