MEHAR CHAND Vs. SURAJ BHAN

JUDGEMENT

(1.) THIS revision petition is directed against the order of the Senior Subordinate Judge, Karnal, as passed on 21st March, 1970, whereby the petitioner who was a defendant in the suit was not allowed to file a written statement.

(2.) SURAJ Bhan and another plaintiffs respondents instituted a suit for possession of certain site against the petitioner and his two brothers, Jai Ram, father of the petitioner, was also a defendant. Substituted service was effected on the petitioner and it appears that he instructed a counsel, but means of a telegram, to appear on his behalf. A memorandum of appearance only was filed by the counsel on 5th October, 1968, since he could not get a written statement duly signed and verified by the petitioner. The other defendants had filed their written statement earlier and counsel for the petitioner made a statement that the written statement of those defendants be treated as his as well. It is not disputed that the interst of all the defendants was identical. On 6th January, 1969, the power of attorney was also filed and thereafter issues framed. The defendants seemed to have later compromised with the plaintiffs with the result that the suit against them was dismissed on 6th May, 1969. On the same day, the plaintiffs made an application that the written statement filed by defendants 1,2 and 4, could not be treated as that of the petitioner and that since no written statement had been filed on his behalf, proceedings be taken ex parte against him. the trial Court, by order of 21st August, 1969, declined the prayer of the plaintiffs so far as taking ex parte proceedings was concerned, but accepted their plea that the written statement of the other defendants could not be adopted by the petitioner and that the latter could not be permitted to file a written statement at that stage. The case was then ordered to be fixed for evidence. After this order was passed, the petitioner made an application on 6th October, 1969, for permission to file a written statement, but it was dismissed by the impugned order made on 21st March, 1970.

(3.) TO my mind, the trial Court acted with gross irregularity in the procedure adopted y it inasmuch as it allowed the case to proceed on without specifically deciding till 21st August, 1969 that the petitioner could not adopt the written statement filed by the other defendants. The Councel for the petitioner had for the first time put in appearance on 5th October, 1968, though without a power of attorney. He made a statement n 11th October, 1968, that the written statement of the other defendants be treated as his also, and it was almost after about ten months that an order was made on 21st August, 1969 deciding that the petitioner could not be allowed to do so. No necessity for a written statement by the petitioner would have arisen if the plaintiffs had not got the suit against the other defendants dismissed. In refusing permission to the petitioner to file a written statement, the trial Court relied upon Order 8, Rule 1, Code of Civil Procedure, which reads as under :-