GANESH PRASAD GUPTA Vs. MANOJ KUMAR GUPTA

JUDGEMENT

(1.) Heard Mr. Rajeeva Sharma, learned senior counsel appearing for the petitioners and Mr. Samir Kumar Lall, learned counsel appearing for opposite party nos. 1, 2, 5, 6 and 7.

(2.) This petition has been filed under Article 227 of the Constitution of India for setting-aside the order dtd. 2/3/2023 passed by the learned Additional Civil Judge (Jr. Division)-III, Ramgarh in Title Suit No.99/2014, whereby, the learned Court has been pleased to dismiss the petition dated 30. 11.2022 filed for recalling the orders dtd. 31/8/2015, 8/4/2016 and 18. 09.2017.

(3.) Mr. Rajeeva Sharma, learned senior counsel appearing for the petitioners submits that the plaintiffs/opposite parties happened to be the owner and title holder of 0.48 acres of land situated in Village- Shibu Colony under Ramgarh Cantt. Bearing Khata No.232, Plot No.3344. The said land was purchased by the plaintiff vide registered deed of sale dtd. 23/8/1961 and after purchasing the aforesaid land, the plaintiff came in possession over the same and mutation was done and rent receipts were issued in his name. He submits that there was some dispute between the plaintiff and defendant nos. 1 and 2 which resulted into a proceeding under Sec. 144 Cr.P.C. before the Sub-Divisional Magistrate, Ramgarh being Case No.100/06 wherein for the first time, defendant nos. 1 and 2 disclosed that out of 0.48 acres of land, both of them had sold 0.24 acres of land vide registered deed of sale to defendant nos. 3 and 4. In this background, he submits that Title Suit No.99/14 was instituted by the plaintiff, who is father of opposite parties for right, title, interest and possession over the suit property in which notices have been issued upon the defendants and thereafter the petitioners/ defendants appeared on 21/3/2015, but they did not file written statement and vide order dtd. 31/8/2015, the learned Court has been pleased to debar the petitioners to file their written statement in light of Order VIII Rule 1 of the CPC. He submits that the written statement was not accepted by the learned Court vide order dtd. 8/4/2016. He also submits that again the prayer was made to accept the written statement, however, the same was further rejected vide order dtd. 18/9/2017 on the ground of res judicata and, therefore, the prayer of the petitioners was rejected. He further submits that in view of the orders dtd. 31/8/2015, 8/4/2016 and 18/9/2017, the learned Court declined to accept the written statement filed by the petitioners. He submits that the said prayers were made on the ground that the conducting Lawyer of the petitioners did not appear before the leaned Court due to health problem. He further submits that the petitioners moved before this Court in W.P.(C) No.6994 of 2017 for setting-aside the order dtd. 18/9/2017 whereby the learned Court has been pleased to decline to accept the written statement filed by the petitioners. He submits that the said writ petition was dismissed as withdrawn vide order dtd. 28/1/2019 with liberty to the petitioners to approach before the learned trial court. He submits that pursuant to that, further petitions were filed before the learned Court on 7/3/2019 and 30/11/2022. He submits that however the learned Court by the impugned order dtd. 2/3/2023 has been pleased to reject the petition dtd. 30/11/2022 and declined to recall the said three orders on the ground of res judicata and further observed that the High Court has not given any liberty to file fresh petition before the learned trial court. He submits that in this background, such delay has occurred and that may kindly be condoned and proper direction may kindly be issued to accept the written statement filed by the petitioners and impugned order may kindly be set-aside. According to him, Order VIII Rule 1 of the CPC is not mandatory, it is directory, as has been held in different cases by the Hon'ble Supreme Court as well as High Courts. On these grounds, he submits that this petition may kindly be allowed.