KAILASH SHRIVAS Vs. CHANDA SHRIVAS

JUDGEMENT

(1.) This petition, under Article 227 of the Constitution of India has been filed challenging the order dtd. 10/02/2022 passed by the 6th Additional Judge, to the Court of 1st Civil Judge, Class-I, Raipur (CG) (for short trial court) in Civil Suit No.18-A/2009. By the impugned order, the learned trial court, has allowed an application filed by respondent no.2/defendant no.2 under Sec. 151 of Civil Procedure Code, 1908 (for short CPC) and permitted her to file the written statement and counter-claim. The parties are hereinafter referred to their status before the trial court.

(2.) The plaintiff has filed a suit before the learned trial Court seeking relief of eviction, possession and recovery of rent in respect of a shop situated in part of plot no.23/5 and 24/6 block no. 98 area about 2580 square feet at Bastal, Hospital Ward, Raipur (C.G.) (for short suit shop). The suit shop is properly described in red colour in the map annexed with the plaint against original defendant Late Rajesh Shrivas (herein after deceased defendant). Deceased defendant filed his written statement. No counter claim was filed by the deceased defendant. However, thereafter he was proceeded ex-parte and an ex-parte judgment and decree was passed dtd. 6/5/2016. Later on deceased defendant filed an application under Order 9 Rule 13 of CPC to set aside the exparte judgment and decree which was registered as M.J.C. No. 35/2016. During pendency of such said M.J.C., deceased defendant Rajesh Shrivas died and defendant no.1 to 4 were substituted in the M.J.C. in place of deceased defendant. The M.J.C was dismissed by the trial court. Against which a Miscellaneous Appeal was filed by the defendant no. 1 to 4, which was allowed by the appellate court and exparte judgment and decree was set aside. The case was remanded back for recording of evidence.

(3.) Thereafter, parties appeared before the learned trial court and plaintiff examined his witnesses and his evidence was concluded. The case was fixed for recording of evidence of defendants. Defendant no.1 examined herself and her evidence was also concluded. On 29/07/2021 the defendant no.1 filed an application interalia stating that defendant no.2 has attained majority and wishes to engage another Advocate. The learned trial court though permitted the defendant no.2 to engage another Advocate however denied her to file a separate written statement vide order dtd. 26/8/2021. The said order was put to challenge by the defendant no.2 in the Writ Petition under article 227 of Constitution of India which was registered as WP227 No.566 of 2021. This court vide its order dtd. 8/10/2021 permitted the defendant no.2 to file an application before learned trial court giving specific reason for filing separate written statement. This court also directed the learned trial court to pass appropriate order if such application is filed.