ALLUAUDDIN CHIRAJUDDIN SHAIKH Vs. PRAKASH DEVENDRA KAPADIA

JUDGEMENT

(1.) The suit in question has been filed by the present opponent (landlord) for recovery of the suit premises from the defendant (tenant). It appears that, on the summons of the suit being served on the defendant, he filed appearance before the Court on 13th June, 1983 through an advocate Shri K.G. patel and asked for time to file written statement; that the suit was threupon adjourned to 4th July 1983 for filing written statement by the defendant but, on that day also, time was sought for filing written statement and the suit was posted to 25th July, 1983 for the filing of the written statement by the defendant; that, on 25th July, 1983, the defendant's advocate Shri J.K. Joshi was out of station having gone to Navsari in connection with some court work there and, therefore, written statement could not be filed on that day nor could an application for adjournment be submitted. The learned Judge thereupon closed the defendant's right to file written statement and the suit appears to have been then adjourned to 6th September, 1983. It was on that day that the defendant submitted application Ex.17 with written statment and urged the Court to set aside the order closing his right to file written statement and to take the written statement filed by him with Ex.17 on record. It is mainly the order passed by the learned Judge on this application Ex.17 that has aggrieved the defendant and he has, therefore, preferred this Revision Application.

(2.) It appears that, though the application Ex. 17 was for setting aside the order closing the right of the defendant to file written statement and for taking written statement on record, the learned Judge had somehow misconceived that application as is evident from the order passed by him which is to the effect that the defendant and his advocate were not present when called out and no important evidence was being produced. In effect, however, it may be taken that by this order the learned Judge had rejected the defendant's prayer for taking his written statement on record. It further appears that, on the same day, the defendant's advocate moved application Ex.21 praying that time may be granted as necessary instructions were required to be obtained from the defendant. This application Ex.21 was submitted by the advocate Shri V.N. Bhagodia who appears to have replaced Shri J.K. Joshi in the meantime. This application was also rejected by the learned Judge and the order on this application too is said to have aggrieved the defendant.

(3.) It is important to note that on 6th of September, 1983 the defendant had moved application Ex.17 and by that application he had not asked for further time to file written statement but had produced this written statement along with the application and had urged that the said written statement be taken on record. Even assuming that there was some lapse committed by the defendant in the past, there can be no doubt that the plaintiff was not going to be prejudiced if the defendant were allowed to file written statement. At the most, if the learned Judge felt it necessary, he could have imposed some condition on the defendant while taking written statement on record such as awarding of some cost of the plaintiff. As against the fact that no prejudice would have occurred to the plaintiff by taking the written statement on record, there cannot be the slightest of doubt that a considerable prejudice would occur to the defendant by refusing to take written statement on record. In fact, not taking written statement on record in a suit for eviction would result in injustice to the defendant. Furthermore, there is no reason to doubt the word of the advocate of the defendant when it was said that written statement could not be filed on 25th July, 1983 because the advocate Shri Joshi was out of station. It should also have been taken note of that the suit was probably at the stage of filing documentary evidence or framing of issues and it was at that the defendant had come with written statement and with the application Ex.17 for taking written statement on record.