DEVENDRA KUMAR Vs. DISTRICT JUDGE KANPUR NAGAR

JUDGEMENT

(1.) S. R. Singh, J. Impugned herein is the order dated 28-8-1996 passed by Judge Small Cause Court-II, Kanpur Nagar. By order dated 24-8-1996 the learned Judge Small Cause Court rejected application No. 153-C filed by the petitioner. Devendra Kumar under Order XXX, Rule 8 of the Code of Civil Procedure at the final hearing stage after two witnesses of the plaintiff respondent had already been ex amined holding, with reference to the averments made in the written statement filed on behalf of the petitioner and co- defendant Yogendra Kumar Mishra, that the defendant- petitioner was a partner in the firm - Kumar Medical Stores, Ramaipur, Post Ramaipur, district Kan pur Nagar. It was also held that the ap plication was filed with a view to protract ing the disposal of the suit. Revision preferred against the said order came to be dismissed vide order dated 17-2-1997 holding that the application under Order' XXX, Rule 8 of the Code of Civil Proce dure was not maintainable since it was not moved before the date of final hearing and also that there was no jurisdictional error in the impugned order. Aggrieved the in stant writ petition has been filed for quash ing of the aforestated orders.

(2.) IT is not disputed that the suit was filed for ejectment of the defendants from the shop situated in Shakuntla Market, Ramaipur, District Kanpur Nagar and for recovery of Rs. 5, 260/- as arrears of rent from 1-3-1985 to 2-2-1988. According to the plaint allegation the shop in question was let out on a monthly rent of Rs. ISO/- to Kumar Medical Stores through Shailendra Kumar Mishra. IT was further alleged that Shailendra Kumar Mishra, Devendra Kumar Mishra and Yogendra Kumar Mishra (defendants No. 2, 3 and 4) were the partners of Kumar Medical Stores liable to pay rent jointly as well as severally. Summons were issued to the defendants. IT appears that written state ment was filed jointly by Devendra Kumar and Yogendra Kumar (defendants No. 3 and 4 ). In paragraph 2 of the said written statement it was stated that the shop was opened by Indra Sen Mishra (the father of the petitioners) jointly with the petitioners as well as defendant No. 2 out of the joint family funds. Appearance of the petitioner in response to the summons issued to them was, however, without any protest and the application under Order XXX, Rule 8 C. P. C. , as stated hereinabove, was moved at the final hearing stage after the evidence of plaintiffs witnesses was recorded in the case.

(3.) IN the instant case, there is nothing on the record to show that the petitioners had, on summons being served on them, put in appearance under protest so as to entitle them to avail of the provisions of Rule 8 of Order XXX of the Code of Civil Procedure. Concededly the application was filed after testimonies of two witnesses of the plaintiff had been recorded in the case. Impugned orders, in my opinion, do not suffer from any illegality and the writ petition deserves to be dismissed.