NIRMAL SAREEN Vs. NILAM KUMARI KAPUR

JUDGEMENT

(1.) THE petitioners have assailed an order dated 20th August 2005 passed by learned Additional District Judge dismissing an application of the petitioners for extension of time for filing written statement.

(2.) THE plaintiffs (respondents herein) filed a suit for declaration, injunction and specific performance in 1994. After defendants were served, some of the defendants were proceeded ex parte. However, defendants No.1, 2 and 3 put appearance and made an application under Order Section 10 and Order 2 Rule 2 of the CPC for stay of the suit on the ground that the plaintiffs had filed an earlier suit qua same property and plaintiff was bound to claim all the reliefs at one go while filing earlier suit. This suit was not maintainable under Order 2 Rule 2 CPC. The other ground taken was that since the property involved was the same and issues and the parties were same, this suit should be stayed. However, this application remained pending for years together and was not decided by this Court. The earlier suit was pending before the Court of learned Additional District Judge and in the mean time this Court transferred to itself the suit pending before the Court of ADJ. An order for trial of the two suits together was made. The plaintiff also made a statement in the Court on 7th April 1997 that in suit bearing number 202 of 1993 pending before the Court of ADJ, an interim order of injunction against the defendant restraining them from transferring, alienating and parting with possession of the property had already been passed and if the interim injunction was allowed in this case, the plaintiff would withdraw the suit pending before the Court of ADJ. Counsel for the defendants No.2 and 3 were agreeable to this course to be adopted. However, defendant No.1 was not available on that day and the matter got posted to next date for his appearance.

(3.) THE instant case shows a sorry state of affairs as to how the case wasproceeded before this Court. The case continued for about 10 years in this Court without bringing the written statement on record either because of statement made by the plaintiff that she will withdrew the suit or because the plaintiff did not file amended memo of parties itself for more than two year and did not furnish the address of Lrs of defendant No.1. The proceedings in this case itself would show that there were exceptional circumstances due to which the written statement was not filed in this case. There is no doubt that written statement should have been filed within a reasonable time, but the defendants in this case had taken the stand that one of the suit was liable to be stayed and filed an application under Section 10 of CPC and under Order 2 Rule 2 CPC which remained pending for last 10 years. If there was no justification for not filing written statement for all these years, no justification can be there for keeping the application under Section 10 CPC pending for all these years. It seems that the plaintiff and defendants both were utterly negligent in pursuing the matter and the Court also did not take any serious note of the case being not proceeded. The provisions of Civil Procedure Code are not only applicable to the parties but are equally applicable on the courts. Where written statement is not filed within a reasonable time, it becomes the duty of the Court to proceed further with the case despite non filing of written statement and record evidence. The plaintiff did not take steps for 10 years when the suit was before this Court to ensure that the case proceeds even without written statement or an application under Section 10 is decided or amended memo of parties is filed.