SUBODH JHA Vs. SUNIL CHOURASIA AND ORS.

JUDGEMENT

(1.) Aggrieved by order dated 31.8.2013 in Title Suit No. 31 of 2009 whereby, application filed by the petitioner for treating the show-cause reply filed in the injunction petition as written statement has been declined, the petitioner has approached this Court by filing the writ petition. Title Suit No. 31 of 2009 was filed for declaration of right, title and interest in the suit scheduled property. In the title suit, the petitioner was arrayed as defendant No. 1. The petitioner after receiving summon appeared on 10.7.2009 by filing 'vakalatnama' and he was granted time for filing written statement. In the meantime, the plaintiff had filed an injunction petition to which the defendant No. 1 was directed to file reply The matter was again listed on 18.7.2009, 7.8.2009 and 10.8.2009 when opportunity was granted to the petitioner for filing written statement still, the petitioner could not file written statement and the Court proceeded to hear the injunction application filed by the plaintiff. The injunction matter was taken before the appellate authority in Civil Misc. Appeal No. 10 of 2009 and finally, it came before this Court in W.P.(C) No. 3447 of 2010. The plaintiff examined 4 witnesses and the defendant No. 2 also closed his evidence. Thereafter, application dated 26.4.2013 was filed by the petitioner for treating the reply to injunction petition as written statement and on 9.7.2013 the petitioner filed a permission petition for the said purpose. Both the petitions were heard together and were dismissed by order dated 31.8.2013. Aggrieved, the petitioner has approached this Court.

(2.) Mr. Habib, the learned counsel appearing for the petitioner submits that since in the proceeding of the application seeking injunction filed by the plaintiff, petitioner appeared and filed his reply. Along with reply, the petitioner produced photocopies of several documents in support of his claim, resisting the application seeking injunction and thus, those documents have been brought to the notice of the plaintiff. It is thus submitted that the petitioner may be permitted to rely on those documents during the trial.

(3.) Mr. Prashant Pallav, the learned counsel appearing for the respondent No. 1 submits that during the trial of the title suit, the petitioner was required to file his written statement however, in spite of 4 opportunities granted to the petitioner, he did not file written statement and four years thereafter, he filed application seeking permission of the Court to treat the reply to the injunction petition as written statement which has rightly been dismissed by the Trial Court. It is further submitted that during the trial, the admissibility, genuineness etc. of the documents have to be decided and therefore, the documents filed by the petitioner in response to the injunction application, cannot be relied on by the petitioner during the trial of the title suit. Considering the submissions of the learned counsel for the parties, I am of the opinion that the petitioner may be permitted to rely on the documents which the petitioner filed in the Trial Court in support of his claim along with reply to the injunction petition and for that limited purpose, the petitioner may be permitted to examine himself or any other witness. It is not in dispute that along with his reply to the injunction-petition, the petitioner has submitted documents, thus, leaving the question of admissibility, genuineness etc. of the documents produced by the petitioner, the petitioner is permitted to rely on the documents filed along with the injunction-petition, in support of his claim and for that purpose the petitioner may examine himself or any other witness for marking those documents as exhibits. The plaintiff would be granted sufficient opportunity to cross-examine the said witness. The writ petition is disposed of with the aforesaid permission to the petitioner. Accordingly, I.A. No. 3707 of 2014 also stands disposed of.