SHANTI SUBBA Vs. JASHANG SUBBA

JUDGEMENT

(1.) The Petitioners are before this Court seeking directions for setting aside the impugned Order, dated 30.03.2021, of the Learned District Judge, Special Division-II, Sikkim at Gangtok, in Title Suit No.14 of 2018 (Shri Jashang Subba v. Smt. Shanti Subba and Others), vide which the Learned Trial Court disallowed the Petitioners from filing their Written Statements in the Title Suit.

(2.) (i) The facts relevant for the present purposes are narrated in seriatim hereinbelow for clarity.

(3.) (i) Learned Counsel for the Petitioners while reiterating the facts as reflected hereinabove, advanced the argument that the Learned Trial Court had passed the impugned Order, dated 30.03.2021, arbitrarily, having failed to consider that on 05.12.2018, which was the second date on which the Petitioners appeared before the Court, they had filed their Application under Order VII Rule 11 read with Section 151 of the CPC seeking rejection of the Plaint on the ground of non-disclosure of cause of action. That, the Order, dated 05.12.2018, reflected that the Petitioners were allowed to file their respective Written Statements on the next date fixed i.e. 18.12.2018. However, on 18.12.2018, the Respondent sought time to file Response to the Application of the Petitioners under Order VII Rule 11 read with Section 151 of the CPC, thereafter the matter was fixed for hearing on the Application. That, it was only on 11.03.2019 that the said Application was disposed of and there was no specific Order passed by the Learned Trial Court till then with regard to filing of Written Statement by the Petitioners. Relying on the ratio of Saleem Bhai and Others v. State of Maharashtra and Others (2003) 1 SCC 557, it was canvassed that the Learned Trial Court failed to consider that there was no delay in filing the Written Statement by the Petitioners and that there cannot be a direction to file a Written Statement without deciding the Application under Order VII Rule 11 of CPC. That, in fact, immediately on rejection of the Application under Order VII Rule 11 of CPC on 11.03.2019, the Petitioners on 28.03.2019, filed an Application under Section 151 of CPC seeking leave of the Court to file their respective Written Statements, however this Petition came to be disposed of by the impugned Order only on 30.03.2021.