AMIT CHAWALA Vs. NIRMAL CHAWALA AND ORS.

JUDGEMENT

(1.) The power of superintendence vested in this Court by virtue of Article 227 of the Constitution of India is invoked by the petitioner to set aside the order dated 23.01.2019 passed by the learned Ist Additional Munsiff, Jammu (hereinafter referred to as "the trial Court") in a Civil Suit titled Amit Chawala Vs. Nirmal Chawala and other. With a view to better appreciating challenge to the impugned order, it would be necessary to set out few admitted facts.

(2.) A suit was filed by the petitioner on 15.04.2017 before the trial Court. The trial Court on the same day issued the summons to the respondents and passed ad-interim order of status quo. The summons issued by the trial Court were not formally served upon the respondents, but, it appears that when order of status quo was brought to the notice of the respondents by the petitioner, the respondents immediately engaged the services of a lawyer and accordingly, Shri Rohit Gupta, Advocate appeared in the matter on 14.07.2017 and sought time for filing written statement. The respondents through their counsel, instead, filed an application under Order VII Rule 11 CPC on 20.07.2017. The application was contested by the petitioner and the same came to be dismissed by the trial Court on 01.02.2018. After the dismissal of the application for rejection of plaint filed by the respondents, an application was moved by the respondents on 06.03.2018 along with written statement for seeking permission of the trial Court to file the written statement. The application was considered by the trial Court in the light of the objections filed by the petitioner and the trial Court vide order impugned allowed the application and permitted the respondents to file the written statement. It is this order of the trial Court, which is assailed by the petitioner on the grounds mentioned herein below:-

(3.) Mr.R.K.S.Thakur of his own appeared for the respondents and contested the plea of the petitioner on the ground that the impugned order was discretionary order passed by the trial Court during the course of the proceedings and, therefore, was not amenable to Revision under Section 115 of CPC. He submits that the remedy available to a party under Article 227 of the Constitution of India, which confers power of superintendence on the High Court is not a substitute for the Revision nor can be invoked to nullify the effect of amendment carried in Section 115 CPC, restricting the right of Revision only against the final order having the effect of terminating the proceedings in the suit. He also relies upon couple of judgments to buttress his arguments that in a case where an application under Order VII Rule 11 CPC has been filed, it is obligatory on the Civil Court to first dispose of such application before proceeding further in the suit. He, therefore, submits that filing of application under Order VII Rule 11 CPC automatically defers the filing of the written statement. Therefore, a good cause to permit the filing of the written statement having regard to the time taken by the Civil Court in disposing of an application under Order VII Rule 11 CPC. He, therefore, urges that the trial Court, in the given facts and circumstances of the case, has exercised its discretion to meet the ends of justice and, therefore, this Court in exercise of its power superintendence may not interfere with the impugned order.