DINESH JOSHI Vs. ARUN KUMAR

JUDGEMENT

(1.) By way of this writ petition filed under Art. 227 of the Constitution of India. the petitioner has challenged the legality, propriety and validity of the order dated 20.9.2006. passed in C.S. No. 04- B/2005 by the Additional District Judge-Shakti. By the said order, the learned Additional District Judge has dismissed an application filed by the petitioner/defendant No. 2 under section 151 of the Code of Civil Procedure along with the written statement and the document, which was filed for permission to take the written statement on record after expiration of the statutory period granted under Order 8, Rule 1, C.P.C. and further after passing of an order by the Trial Court on 26.4.2006, by which, a right to file written statement by this defendant was closed by the Trial Court under the provisions of Order 8, Rule 1, C.P.C. Learned Counsel for the petitioner argues that admittedly, this petitioner/defendant No. 2 was served in the aforesaid Civil Suit No. 4- B/2005 on 17.8.2005 and his Counsel has filed Vakalatnama and registered address on behalf of this defendant on 24.8.2005 and he had to file his written statement according to the provisions of Order 8, Rule 1, C.P.C. within a period of 30 days and further within the extended period of 90 days by the Court, but he could not do so, on account of certain difficulties. which were mentioned in the application filed under section 151, C.P.C. and the Trial Court without properly adverting to the provisions of law and without looking to the difficulties, pleaded by defendant No. 2 as a cause for not filing the written statement in time, dismissed the said application and fixed the case for plaintiffs evidence on 5.10.2006. It is stated that other defendants i.e. defendant Nos. 1. 3 and 4 were already proceeded ex parte and defendant No. 5 has also not filed the written statement, therefore, the matter was fixed for evidence by the Trial Court.

(2.) A perusal of the impugned order would show that it was a suit for damages filed by the plaintiff, in which, the plaintiff has claimed a sum of Rs. 1,61,292.00 against the defendants and in the said suit the only contesting defendant i.e. defendant No. 2 was denied to file the written statement on account of closure of his right under Order 8, Rule 1, C.P.C.

(3.) Learned Counsel for the petitioner argues that the order passed by the Trial Court is not in accordance with the provisions of Order 8, Rule 1, C.P.C. and the Trial Court, for the reasons stated in the application filed under section 151. C.P.C., would have granted an opportunity to the petitioner and would have accepted the written statement on record, which was filed by the petitioner along with an application under section 151, C.F.C. He refers to the decision of the Apex Court rendered in the matter of Kailash Vs. Nanhku and others, (2005) 4 SCC 480 : 2005 (29) AIC 95 (SC) .