JINDAL SAW LTD Vs. SAUBHAGYACHAND SHAMBULAL VORA

JUDGEMENT

(1.) Heard ld. Sr.Counsel Mr. PM Thakkar for ld. Counsel Mr.Ravindra Shah for the petitioner. Invoking jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner has prayed to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 19.07.2005 Annex.A to the petition whereby the ld. 5th Jt. Civil Judge (S.D.), Bhuj-Kutch rejected the application exh.35 in Special Civil Suit No. 24/2004 and to allow application exh.35 directing the trial court to take the written statement of the petitioner-defendant company on record.

(2.) "(i) The petitioner is a Public Limited Company and and defendant in a Special Civil Suit No.24/2004. As the defendant company prayed vide application exh.35 that it may be permitted to file written statement in the suit as it could not file written statement in time granted. The day on which the application exh.35 was tendered, written statement was also kept along with the application prying permission. (ii) In the application, the petitioner has contended that the defendant is a big company and the officers of the company conversant with the facts have to go out of district Kutch frequently and, therefore, the company could not submit its written statement within time. Who should sign the written statement was also a question. The application exh.35 was tendered in the Court on 05.06.2004 and the advocate appearing for the plaintiff objected and subjected by making an endorsement in the margine of the application exh.35 that the plaintiff should be heard before according permission to file written statement. Ultimately, the ld. Civil Judge, after hearing the advocates appearing for the parties, rejected the application exh.35 vide impugned order dated 19.07.2005. (iii) It is relevant to note that the day on which application exh.35 was filed, one another application exh.37 under O.39 R.4 of Civil Procedure Code ( CPC for short) was also submitted by the the petitioner defendant praying that in absence of written statement from the defendant side, interim prohibitory orders have been passed by the Court issuing directions to the parties to maintain status quo on 07.05.2004 and therefore that order may be modified in exercise of the powers vested with the Court under O.39 R.4 of CPC. The suit and the application praying interim orders are of 16.03.2004, but because of caveat filed by the defendant company, no ex-parte orders were passed, but after several adjournments and on hearing the parties, the ld. Civil Judge, allowed the application exh.5 passing interim prohibitory orders against the petitioner defendant from entering, transgressing or encroaching upon the suit land so also against causing any obstructions in peaceful enjoyment of the property by the plaintiff-respondent. The defendant company was also prohibited from putting up any construction etc. (iv) On 04.05.2004, a pursis was filed by the petitioner defendant that it would maintain status quo in respect of the suit property in question. Obviously, in absence of any formal reply-written statement, ld. Civil Judge proceeded with the application and ultimately passed the order below application exh.5. (v) Before the application exh.35 praying permission to file written statement, one application exh.31 was filed by the plaintiff to take action or to pass orders under O.39,R.2(a) of CPC stating that defendant company is violating the interim prohibitory orders on 01.06.2004. When the application as well as application under O.39 R.4 were filed on account of injunctory order dated 07.05.2004 passed against the petitioner defendant earlier being operative, it was challenged by way of filing writ petition under Article 226/227 of the Constitution of India before this Court vide Spl.Civil Application No. 13864/2004. However, after hearing the parties, this Court (Coram: A.L.Dave, J), dismissed the petition holding that;- in light of the factual scenario and considering that the order impugned is of a inter-locutory nature, this Court is not inclined to exercise its powers under Article 227 of the Constitution of India. Petition must fail and stands rejected. Notice discharged.No costs. (vi) The above order passed by this Court was assailed before the Apex Court under Civil Appellate Jurisdiction by preferring Special Leave Petition No.7369/2005. The Apex Court, considering the factual contingency and the nature of grievance placed by the petitioner defendant, was pleased to pass the following order on 18.04.2005 :- Leave granted."

(3.) The Apex Court quashed the order and directed that both the applications viz.application under O.39 R.4 filed by the petitioner defendant and the application under O.39 R.2(a) filed by the respondent plaintiff be heard together on merits and as early as possible and preferably within two months. In compliance with the order passed by the Apex Court, the ld. Civil Judge rejected the application under O.39 R.4 filed by the petitioner-defendant, the day on which it refused to permit the defendant to file written statement.( Emphasis, being relevant for the present order, supplied).