CHANDUBHAI @ AMARSANG BHAYABHAI Vs. RASIKLAL MANILAL KHERDIYA (DARJI)

JUDGEMENT

(1.) Rule. Learned advocate Mr. V. D. Thoria waives service of notice of rule on behalf of respondent.

(2.) Petitioner is original defendant, whereas respondent is original plaintiff before the Court of Senior Civil Judge, Rajkot in Regular Civil Suit No. 354 of 2009. Plaintiff has filed a suit for declaration and possession of the suit property claiming that though he is owner, defendant has trespassed and occupied the suit property illegally. In such suit, defendant petitioner could not file reply in time and, therefore, by an application at exhibit 29, defendant has prayed to open his right to file a written statement and to accept the written statement presented by him on record. Copy of written statement is annexed at annexure B to this petition from page 22 to 25. Though contents of such written statement is to be considered only after it has been accepted on record, the fact remains that petitioner has categorically pleaded in such petition as well as in such statement that defendant himself has preferred a Regular Civil Suit No. 106 of 2005 and that he is in possession of the suit property since last 30 years. It is also contended that in fact, even plaintiff has also disclosed the pendency of many litigations being Civil Suit No. 105 of 2005, Civil Appeal No. 15 of 2006 and Special Civil Application No. 6063 of 2007. Thereby it is contended that, in view of such facts and circumstances when civil litigations are pending between the parties, defendant would not fail to defend such suit by not filing written statement. However, since the advocate for the petitioner defendant has filed a formal application to accept the written statement on record, at belated stage, probably without assigning good reasons and, therefore, trial Court has by impugned order dated 12.07.2012 below exhibit 29 rejected such request contending that defendant has deliberately not filed the written statement and that when defendant has lost the previous suit, now he has no defence in this suit and, therefore, written statement cannot be accepted. It is also contended that there is no explanation as to why there is delay in filing written statement and, therefore, relying upon the judgment reported in AIR 2012 Jharkhand page-8 between Manoj Mahto and Kaleshwar Mahato, the trial Court has considered that this is a delaying tactic of defendant and, therefore, refused to accept the written statement.

(3.) The recent judgment of Hon'ble the Supreme Court of India in the case of Banwari Lal and another Vs. Balbir Singh in Civil Appeal No. 6567 of 2015 also confirms that procedural law is not meant to defeat the cause of justice. The relevant portion of para Nos. 10 and 11 reads as under: