BAGHEL SINGH Vs. DILBAGH SINGH

JUDGEMENT

(1.) This revision petition is at the instance of defendants who have challenged order dated 7.6.2010 passed by the Additional Civil Judge (Senior Division), Ajnala by which the plaintiffs have been permitted to bring on record duplicate copy of the plaint and affidavit subject to payment of Rs. 400/- as costs.

(2.) Briefly put, plaintiffs filed the present suit for declaration to the effect that they are owners in possession of the land measuring 19 kanals 14 marlas situated in the revenue estate of Village Dhariwal, Tehsil Ajnala, District Amritsar and in alternative, suit for joint possession and permanent injunction to restrain the defendants from alienating the suit land. Admittedly, suit was filed on 4.7.2002. After the expiry of 8 years of the trial when the suit was at the stage of arguments, the defendants filed an application under Section 152 of the Code of Civil Procedure, 1908 (for short "CPC") to bring on record duplicate copy of the plaint and an affidavit in support thereof. It is clear in the application that suit was filed on 4.7.2002 whereas the amendment in the CPC became operational w.e.f. 1.7.2002 vide which the plaintiffs were required to file duplicate copy of the plaint and also an affidavit in support thereof. The said application has been allowed by the Court below on two grounds firstly, in view of the Supreme Court judgment in the case of "Vidyawati Gupta & Ors. v. Bhakti Hari Nayak & Ors, 2006 1 RCR(Civ) 727 in which it has been held that the provisions requiring filing of duplicate copy of the plaint and affidavit in support thereof are directory and not mandatory and secondly that the suit is now at the stage of final adjudication, therefore, it would be unjust to decline the prayer made in the application by the plaintiffs. Thus, the application has been allowed compensating the defendants with costs.

(3.) Mr. B.R. Mahajan, learned counsel appearing on behalf of the petitioners has vehemently argued that Section 26(2) of the CPC provides that in every plaint, facts shall be proved by affidavit. Order 6 Rule 15(4) of the CPC also provides that the person verifying the pleading shall also furnish an affidavit in support of his pleadings and Order 7 Rule 11(e) of the CPC provides rejection of plaint where the plaint is not filed in duplicate. However, he could not refer to any precedent that the provisions are mandatory and non-curative. The plaintiffs, in order to cure the procedural defect have filed the present application before the defendants could have filed an application under Order 7 Rule 11(e) of the CPC for rejection of the plaint. Even otherwise, a period of eight years has passed since the trial had begun and the suit is on its last legs. Therefore, it would be inequitable to decline the prayer of the plaintiffs to cure the procedural defect. Thus, in my view, the impugned order does not suffer from any illegality or irregularity and as such I do not find any merit in the present revision petition and the same is hereby dismissed. No costs.