MADAN SINGH RAWAT Vs. ASHOK KUMAR GUPTA

JUDGEMENT

(1.) PRESENT petition has been filed by the petitioner for quashing the order dated 11.01.2010 passed by the learned Civil Judge (Sr. Div.), Dehradun in Original Suit No.226/2008, "Ashok Kumar Vs. Madan Singh Rawat" whereby the learned Court while allowing the application (paper no.28C2) moved by the plaintiff/present respondent for proceeding against the defendant/present petitioner under Order 8 Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred as to the C.P.C.) has dismissed the application (paper no.27/D) moved by the present petitioner seeking time to file written statement.

(2.) BRIEF facts of the case, as narrated in the writ petition, are that the plaintiff/present respondent filed a suit for permanent injunction against the petitioner for restraining him and all persons claiming through or under him for interfering in any manner in the peaceful possession. The said suit was registered as O.S. No.226/2008, "Ashok Kumar Vs. Madan Singh Rawat". An application for ad-interim injunction was also moved by the respondent and ad-interim injunction was granted in favour of the respondent. The notice of the aforesaid suit was served upon the father of the petitioner on 03.09.2009. The petitioner duly acknowledges but categorically asserts that the notice served upon the petitioner's father did not contain the copies of the injunction application, affidavit, annexure and list of documents. The copies of these documents were not supplied to the father of the petitioner. Since, the copies of the injunction application, affidavits annexure and list of documents were not supplied to the father of the petitioner, hence the petitioner moved an application (paper no.25D dated 21.10.2009) praying to the learned Trial Court for issuing direction to the respondent to provide the copies thereof to the petitioner and further sought time to file the written statement. Despite the application (paper no.25D dated 21.10.2009), the copies of the plaint, injunction application, affidavit, annexure and list of documents were not supplied by the respondent to the petitioner. Again on 11.01.2010, the petitioner moved an application (paper no.27D) praying to the learned Court for issuing direction to the respondent to provide the copies thereof to the petitioner and further sought two weeks time to file the written statement. Immediately on receipt of the application (paper no.27D) dated 11.01.2010, the respondent also moved an application (paper no.28C2) for proceeding against the defendant/ petitioner under Order 8 Rule 10 C.P.C. on account of non filing of written statement within the statutory period. The learned Civil Judge (Sr. Div.), Dehradun vide order dated 11.01.2010 dismissed the application (paper no.27/D) moved by the petitioner and to the contrary allowed the application (paper no.28C2) moved by the plaintiff/present respondent for proceeding against the defendant/present respondent under Order 8 Rule 10 C.P.C. thereby closing the opportunity of filing written statement and further directing for proceeding ex-parte against the petitioner.

(3.) LEARNED counsel for the respondent, on the other hand, submitted that delay in filing written statement was not at all bonafide and no such permission should be granted to the petitioner. He further submitted that the respondent in compliance of learned Trial Court's order as well as the provision of Order 39 Rule 3 of C.P.C. took steps for service on the petitioner and sent copies of plaint, temporary injunction application, affidavit and other documents etc. to the petitioner by registered post and filed an affidavit of compliance before the learned Court below. The petitioner with an intention to delay the proceedings cleverly tried to avoid service upon him and managed to get a report being endorsed on the summons sent by the Court that the address mentioned is wrong. He further submitted that the petitioner was duly served on the address mentioned in the writ petition through registered post sent by the respondent in compliance of Order 39 Rule 3 C.P.C. on 25.04.2008 and was also served by the Process Server of the Court on 03.09.2009. The petitioner with a view to linger on the proceedings and to harass the respondent filed an application on 21.10.2009 before the learned Civil Judge (Sr. Div.), Dehradun stating therein that the petitioner has not been given a copy of the interim relief application, affidavit and annexure etc. and therefore it is not possible to prepare written statement and objections and he sought some further time as well as direction for providing copies. He stated that the learned Trial Court directed the petitioner to file written statement within the prescribed period and passed an order on the application of the petitioner. Thereafter, despite the order of the learned Court below, the petitioner did not file his written statement within the stipulated period and on the next date i.e. on 11.01.2010 filed an application praying therein for providing copies of the plaint and further 15 days time to file the written statement, on which the respondent objected and filed an application, on the same date, praying for proceeding under Order 8 Rule 10 C.P.C. for the default committed by the petitioner. He further submitted that it is an admitted case of the petitioner that he has been supplied with the copy of the plaint and despite the expiry of the time as provided under Order 8 Rule 10 C.P.C., he has not filed his written statement and the objection taken by the petitioner before the Court below was that he has not been supplied with the copies of the temporary injunction application, affidavit and documents etc. though the same were served upon him firstly, through registered post by the respondent on the address mentioned in the present writ petition and secondly, by the Process Server. LEARNED counsel for the respondent argued that Trial Court has rightly came to the conclusion that despite sufficient service, the petitioner has not filed his written statement within 90 days and the objections taken for in compliance of Order 39 Rule 3 C.P.C. appears to be baseless and therefore, rejected the application of the petitioner for granting further time to file written statement and allowed the application of the respondent and directed to proceed under Order 8 Rule 10 C.P.C.