SARU SMELTING PRIVATE LTD Vs. SHARDA GUPTA

JUDGEMENT

(1.) (Oral) 1. This petition under Article 227 of the Constitution assails the order dated 22.09.2011 of Civil Judge in CS No. 98/10/01.

(2.) THERE are two suits which are pending before the Civil Judge. The suit No. 97/10/99 was filed by the respondent for possession and recovery of damages against the petitioner and suit being 98/10/01 was filed by the petitioner against the respondent for specific performance. Both these suits were consolidated on 8.12.2003 and vide order dated 22.01.2004, common issues were framed and the cases were tried jointly. Thereafter, vide order dated 9.11.2010 of the Civil Judge, the cases were de-consolidated. The petitioner challenged the same vide CM (M) 1/2011 in this court. This court, taking note of the fact that the common issues have already been framed and the evidence has already been led in both the cases and the cases are ripe for final arguments, directed to dispose of the suits as per the evidence already recorded based on the common issues framed in the suits. At the stage of final arguments, the court noticed that the formal written statement was not on record in the case being suit No. 98/10/01 filed by the petitioner. An application had been filed under Order 8 Rule 10 CPC by the petitioner, who was the plaintiff in the said suit, to struck off the defence of the respondent. The said application was dismissed vide impugned order by Civil Judge. The Civil Judge noted that since both the cases have been consolidated and common issues have been framed and the order was also passed by this court for disposal of both the cases as per the evidence already on record, the plaint that was filed by the respondent in his case being 97/10/99 was to be treated as a written statement to the instant suit 98/10/01. This order is under challenge in the instant petition.

(3.) AS is noted above, both the cases have been tried together from the beginning. Not only that the common issues were framed, but even the common evidence was led by both the parties. Though, the initial submission of the counsel appearing for the respondent was that the written statement was filed, but the same was not on record. The learned counsel appearing for the respondent states that this submission was made based on the copy of the written statement, that was found lying in his office file, which was entrusted to him after the change of the previous counsel. The Trial Court has also noted that the issues were framed based on the pleadings of the parties, assuming there to be the written statement filed by the respondent. However, it was only at the stage of final arguments that it was noted that the formal written statement was not on record.