TEERATH SINGH Vs. YOGENDRA SINGH

JUDGEMENT

(1.) All these three writ petitions are in between the same parties the subject matter: of the suit being similar and controversy involved in all the writ petitions is same, therefore, for the sake of convenience, they are being decided by this common judgment.

(2.) All these writ petitions have been filed for quashing the impugned orders dated 01 -02 -2005 and 8 -8 -2005 passed by the trial court. By the order dated 1 -2 -2005, the learned Civil Judge (Sr. Div.) Roorkee rejected the application for grant of further time to file the written statement and ordered the case to proceed ex -parte on the ground that the Defendant failed to file his written statement even after expiry of the period of 90 days after the service of summons on him on 11 -8 -2004. By the order dated 8 -8 -2005, the application of the Defendant -Petitioner for setting aside the order dated 1 -2 -2005 was rejected by the Additional District Judge, I F.T.C. Roorkee at Roshanabad.

(3.) Relevant facts giving rise to these writ petitions are that the Respondent has filed three suits before the Civil Judge (Senior Division) Roorkee against the Petitioner on 28 -7 -2004 being Original Suit No. 40 of 2004, O.S. No. 41 of 2004 and O.S. No. 39 of 2004 Yogendra Singh v/s. Teerath Singh. These suits are pending for disposal before the Additional District Judge, I F.T.C. Roorkee. It comes out from the perusal of the record that after filing of the suit, summons were issued to the Defendant -Petitioner for the date fixed. The summons were served on 11 -8 -2004. It reveals that no written statement was filed by the Defendant in the suits till 1 -2 -2005. Both the parties were present on that date before the trial court. Application for adjournment was moved on the personal ground of illness of the counsel mentioning that the written statement was not ready. The Plaintiff -Respondent opposed the application on the ground that the 90 days period of service of summons on the Defendant has already elapsed but no written statement was filed by the Defendant. The Trial court observed that the Defendant failed to file written statement within the stipulated period of 90 days, though he was served on 11 -8 -2004, hence the trial court passed the order to proceed ex -parte against the Defendant and accordingly rejected the application. It appears that subsequently the case was transferred to the Court of Additional District Judge, I F.T.C. Roorkee. In that court on 28 -2 -2005, the Defendant moved an application alleging therein that the Defendant is an illiterate person and not acquainted with the legal knowledge. After receipt of notice, the Defendant contacted the lawyer Sri Manmohan and engaged him as his counsel. The Defendant was not aware that the said counsel practices on criminal side and not on civil side. It was due to the mistake of the lawyer that no written statement was filed and adjournments were sought. It is alleged that it was only on 1 -2 -2005, that the Defendant came to know that the court had rejected his application. It was prayed that in case the order dated 1 -2 -2005 is not recalled, the rights of the Defendants will be adversely affected. On this application, the Plaintiff filed his objection supported by affidavit stating therein that under the provisions of Order 8, Rule 1 Code of Civil procedure, no relaxation can be granted and the ignorance of law is not excusable. The Seamed trial court after hearing the arguments of the parties counsel has observed that the Defendant took time on 13 -9 -2004 on the ground that Sri Man Mohan Advocate could not inspect the file. On 6 -10 -2004 again the counsel took adjournment on personal ground. On 9 -11 -2004, adjournment was sought as he was busy in other cases. On 10 -12 -2004, time was sought on account of personal ground. It was found that on 1 -2 -2005, the application was moved on behalf of the Defendant by another advocate, therefore, it was not acceptable that Sri Manmohan used to take time in the case throughout. The court further observed that Sri B.M. Sharma, Advocate, also filed his Vakalatnama in the case on 25 -2 -2005 and even after notice of the fact that suit was ordered to proceed ex -parte, no action was taken promptly. Ultimately, by the impugned order dated 8 -8 -2005, the trial court did not find favour with the contention of the Defendant and relying upon the Apex Court judgment in the case of Kailash v/s. Nanhku : (2005) 4 SCC 272 observed that in the instant case, the circumstances were not exceptional and they cannot be said to be beyond the control of the Defendant and accordingly rejected the application of the Defendant by a detailed order.