NAGENDRA RAJAK Vs. KHOKHANI DEVI

JUDGEMENT

(1.) Initially order dated 26.06.2007 passed in Title Suit No. 33 of 2003 by which the application under Order VII Rule 11 and Order XXIII Rule 3, 3-A C.P.C read with Section 151 C.P.C was rejected, this writ petition was filed. After filing of this writ petition I.A. No. 2758 of 2007 was filed by the petitioners seeking amendment in the writ petition for incorporating challenge to order dated 19.06.2004 by which the defendant nos. 1, 2 and 5 were debarred from filing written statement. I.A. No. 2758 of 2007 was allowed on 11.09.2012.

(2.) Title Suit No. 33 of 2003 was instituted by Smt. Khokhani Devi for a decree of declaration that preliminary and final decrees passed in Title Suit No. 29 of 1984 were forged, fabricated, fraudulent as well as void, illegal and inoperative, not binding on her. A decree of partition for plaintiff's half share in the schedule "D" property and a decree of declaration of plaintiff's right, title and interest over schedule "CI" properties are the reliefs sought by the plaintiff. In the pending suit, the defendants appeared on 03.12003 and by an order dated 19.06.2004 defendant nos. 1, 2 and 5 were debarred from filing written statement. In the meantime, an application under Order VII Rule 11 C.P.C and Order XXIII Rule 3, 3-A C.P.C read with Section 151 C.P.C was filed by the defendants for rejection of the plaint on the ground that in view of judgment and decree in Title Suit No. 29 of 1984, the suit was barred by res-judicata.

(3.) Contending that in view of Rule 3-A to Order XXIII C.P.C a suit on the ground that the decree has been obtained by playing fraud is barred and therefore Title Suit No. 33 of 2003 is liable to be dismissed, Mr. A. K. Choudhary, the learned counsel for the petitioners assails the legality of the impugned order dated 26.06.2007. On debarment of the defendant nos. 1, 2 and 5 from filing written statement, the learned counsel for the petitioners submits that normally parties should be permitted to contest the suit on merits and therefore these defendants should have been granted opportunity, may be by imposing cost, to file written statement in Title Suit No. 33 of 200