PUSARAM Vs. JYOTI ALIAS SAVITRI

JUDGEMENT

(1.) Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for contesting parties. The order passed by the Civil Judge, Junior Division, Wadvani, on 08.02.2011, below Exhibit-61 in R.C.S. No. 65/ 2008, (Old No. 496/2006) rejecting the application tendered by petitioner - original defendant No. 4 for setting aside no written statement order, is subjected to challenge in this writ petition.

(2.) Respondent No. 1 - original plaintiff instituted Regular Civil Suit No. 496/ 2006 (new No. 65/2008) in the Court of Civil Judge, Junior Division, Majalgaon, claiming decree of ownership and perpetual injunction in respect of agricultural property situate at village Katiwadgaon, Tq. Wadvani. Defendant No. 1, who is father of plaintiff, appeared in the suit and presented consent written statement. Defendants No. 2 and 3, who are also related to plaintiff and defendant No. 1, did not file written statement. As such, no written statement order came to be passed against them on 05.04.2007. Defendant No. 4 - petitioner herein also could not present his written statement, as such, no written statement order came to be passed against him on 13.11.2007.

(3.) The petitioner - defendant No. 4 presented an application on 27.01.2011 requesting the Court to set aside no written statement order and permit defendant No. 4 to file written statement. It is pointed out by learned Counsel appearing for petitioner -defendant No. 4 that the suit was initially presented in the Majalgaon Court and same was numbered as R.C.S. No. 496/2006. In view of establishment of Court at Wadvani since 15th August 2008, suit presented in the Majalgaon Court came to be transferred to the newly established Court at Wadvani and renumbered as R.C.S. No. 65/2008. It is the contention of petitioner - defendant No. 4 that no notice of transfer of suit came to be issued to the petitioner - defendant No. 4. Defendant No. 4, through his Counsel, caused appearance before Wadvani Court on 27.01.2011, on which date, he presented an application requesting the Court to set aside no written statement order. It is contended that defendant No. 4 has not intentionally failed to file the written statement and the lapse occurred in not presenting the written statement is attributable to transfer of suit from one Court to another Court. It is also contended that since defendants No. 1 to 3 are not contesting the suit presented by plaintiff, it is only defendant No. 4, whose rights are affected, is required to contest the suit.