BISMILLA BEE Vs. ARJUMAN AARA

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order dated 12.10.2011 passed in COS No.73-A/2011. The Court below by the impugned order allowed the application dated 28.08.2012 (Annexure P/7) which was filed by the defendants No. 1 to 5 by imposing Rs.500/- as costs and permitted the said defendants to file their written statements.

(2.) The petitioner instituted a suit for declaration of title and permanent injunction against the respondent / defendants. It was prayed therein that the plaintiff be declared as 1/5 share holder in the suit land after partition. Permanent injunction was also prayed for to restrain the defendants from alienating the property and from making any interference in joint possession of the plaintiff over the suit land. The Court below issued notices to the defendants. Defendants entered appearance before the Court. Out of seven defendants, only defendants No. 6 and 7 filed their separate written statements. It is submitted by Shri Abhishek Bhadoriya that defendants No. 2 to 6 are real sisters and are represented before Court below through a common and single Advocate namely Shri L.N. Dandotiya. It is urged that said counsel is representing all the defendants continuously. Copies of order sheets indicating the same are filed as Annexure P/5.

(3.) In the said civil suit application filed under Order 39 Rule 1 & 2 C.P.C was decided in presence of defendants No. 1 to 6 and thereafter evidence of plaintiff was started and closed in the presence of defendants. Defendants were given due opportunity of crossexamination. Defendants No. 1 to 6 had cross-examined the plaintiff and her witnesses through the said counsel Shri Dandotiya. Copy of document showing said cross-examination is filed as Annexure P/6. After closing of the evidence of plaintiff, defendants No. 1 to 6 have started leading evidence. The affidavits under Order 18 Rule 4 C.P.C. of defendants No. 3 and 6 were submitted on 13.03.2012. The defendant No.3 has already been cross-examined and defendant No.6 is yet to be cross-examined. The grievance of the petitioner is that at this stage an application under Section 151 C.P.C dated 28.08.2012 was filed on behalf of defendants No. 1 to 5 seeking permission to file written statement. This application is Annexure P/7. The petitioner opposed the said application by filing reply (Annexure P/8).