LABH CHAND JAIN Vs. SHRI SUGAN CHAND JAIN

JUDGEMENT

(1.) BY this order, I shall dispose of the review petition no.475 of 2009 and IA No.15754/2009. IA 15754/2009 has been made by defendant no.5 seeking stay of operation of order dated 23rd November 2009, permitting defendant no.3 to file his evidence by way of affidavit. The review petition 475 of 2009 has been made by defendant no.5/Lr of defendant no.1 for reviewing /recalling the order dated 23rd November 2009 passed by this Court.

(2.) ON 23rd November 2009, the matter was referred to the Court by the Joint Registrar for further directions. Defendant no.3 was already ex parte. The counsel for defendant no.3, however, put appearance and stated that since the matter was at the stage of defendants evidence, defendant no.3, who had already filed affidavit by way of evidence, be permitted to lead evidence. This Court directed that copy of the affidavit of evidence of defendant No.3 be furnished to other parties and the evidence of defendant no.3 be recorded after evidence of other defendants was over.

(3.) A person who does not file written statement to a suit is not ousted from the suit. A person may not file written statement in the suit for several reasons like, he may think that the suit was inherently not maintainable and he would convince the Court about nonmaintainability of the suit; he may think that the claim of the plaintiff was justified and he need not contest the claim; he may think that the claim of the plaintiff, even if decreed, was not going to affect him, so why should he unnecessarily file written statement; he may think that since other defendants were contesting the suit that was sufficient to protect his interest and he need not separately file a written statement and engage a counsel. These are some of the few possibilities where written statement may not be filed by a person. However, a person who does not file written statement can still participate in the proceedings and lead evidence either supporting the claim saying that he agrees with the plaint or he may argue before the Court that the claim was inherently not maintainable and he can demonstrate this without filing written statement. The Court cannot deny a person the right to participate in the proceedings if a person does not file written statement or has remained ex parte upto some stage. However, such a person who has been proceeded ex parte cannot be relegated back to the initial stage and he will have to join the proceedings from the stage he started appearing in the Court. In the case in hand, defendant no.3 joined the proceedings when evidence of defendants was going on and wanted that her evidence be also recorded. Under these circumstances, since she was allowed to participate in the proceedings, she had a right to lead evidence in support of plaintiff case. However, since she had not filed written statement, it can be presumed that she was supporting the plaintiff case. However, she cannot be permitted to lead evidence on the pleadings of other defendants by saying that she had adopted the written statement of other defendants. She cannot be given liberty to lead evidence on those pleadings in written statement of other defendants on which other defendants had opportunity to lead evidence. In absence of her written statement she can lead evidence in support of plaintiff only to the extent of pleadings of the plaintiff. She cannot introduce new documents by attaching the documents along with affidavit of evidence, since the stage of filing documents was over long back.