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NARENDRA TIWARI versus SRI NIWAS TIWARI AND OTHERS

High Court of Judicature at Allahabad

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Narendra Tiwari v. Sri Niwas Tiwari And Others - WRIT - C No. - 56791 of 2007 [2007] RD-AH 18085 (20 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 6

Civil Misc. Writ Petition No. 56791 of 2007

Narendra Tiwari

Vs.

Sri Niwas Tiwari & Ors.,

*******

Hon. Dilip Gupta, J.

The petitioner of Original Suit No. 1634 of 1989 has filed this petition for setting aside the order dated 21st October, 1998 that had been passed by the learned Civil Judge (Junior Division) Varanasi by which the application filed under Order IX Rule 9 of the Code of Civil Procedure (hereinafter referred to as ''CPC') for setting aside the dismissal order dated 29th August, 2006 was rejected. The petitioner has also sought the quashing of the order dated 7th August, 2007 passed by the learned Additional District Judge, Court No. 13 Varanasi, by which the appeal filed against the said order has been dismissed.

The Original Suit had been filed for permanent injunction to restrain the defendants from interfering with the peaceful possession of the property in dispute. Along with the plaint, an application for grant of temporary injunction was also filed. The injunction application was disposed of by the Trial Court by the order dated 7th May, 1990. The defendants preferred Miscellaneous Appeal against the said order which was ultimately rejected by the order dated 4th March, 1998.

These two orders were challenged in Writ Petition No. 13127 of 1998. Initially, the orders passed by both the Courts below were stayed but ultimately the writ petition was disposed of by the judgment and order dated 1st August, 2006. It was observed that in case, the suit has not yet been decided then it shall be decided very expeditiously but in case it has already been decided then the writ petition shall be deemed to have been dismissed as infructuous.

The petitioner-plaintiff filed a Restoration Application on 2nd September, 2006 under Order IX Rule 9 CPC for setting aside the order dated 21st Octobrer, 1998. Along with this application, an application under Section 5 of the Limitation Act for condoning the delay was also filed. It was stated that the plaintiff got knowledge of the order dated 21st October, 1998 only in the month of July, 2006 when the plaintiff and the defendants were called at the police station and the defendants gave the information about the dismissal of the suit on 29th October, 1998; that the records of the lower Court had been summoned by the lower Appellate Court in the Miscellaneous Appeal that had been filed by the defendants against the grant of temporary injunction and when this Miscellaneous Appeal was dismissed, the Court did not fix any date for appearance of the parties before the before the Trial Court; that subsequently from the records it is transpired that the records were received back by the Trial Court on 20th July, 1998 on which date the Court fixed 26th August, 1998 for further orders and subsequently on 26th August, 1998, the Court fixed 17th September, 1998 for further orders; that on 17th September, 1998 the Court fixed 13th October, 1998 for filing of written statement and 21st October, 1998 for framing of issues; that on 21st October, 1998 the written statement filed along with an application was accepted by the Court even in the absence of counsel for the plaintiff even though a copy of the same was not served on the counsel for the plaintiff and the suit was also dismissed in the absence of the plaintiff under Order IX Rule 8 CPC.

An objection was filed by the defendants to the Restoration Application. The Restoration Application was ultimately rejected by the learned Civil Judge (Junior Division) Hawali, by the order dated 13th March, 2007 and the Miscellaneous Appeal filed against the said order was also dismissed.

I have heard Sri Ram Niwas Singh learned counsel for the petitioner and Sri Tripathi B.G. Bhai learned counsel appearing for defendant-respondent No. 5 and Sri Ashutosh Upadhyaya learned counsel for the remaining respondents.

Learned counsel for the petitioner reiterated the same submissions as had been advanced before the lower Appellate Court. He submitted that under Rule 36 of the General Rules (Civil) 1957 it was obligatory on the part of the defendants to serve a copy of the written statement on learned counsel for the plaintiff but in the present case, the written statement was filed along with an application without serving a copy on the learned counsel for the plaintiff. He, therefore, submitted that in such circumstances, the written statement should not have been accepted and the Suit, therefore, could not have been dismissed under Order IX Rule 8 CPC as in the absence of a written statement it must be presumed that the defendants had admitted the claim of the plaintiff. He further submitted that the Suit had been dismissed in a fraudulent manner and, therefore, the order should have been set aside by the Court. In support of this contention, he has relied upon the decision of the Supreme Court in Kaushalya Devi Vs. Prem Chand & Anr. (2005) 10 SCC 127. He further submitted that a liberal approach should have been adopted while deciding the application filed under Order IX Rule 9 CPC in view of the decision of the Supreme Court in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors., AIR 1987 SC 1353 and the decision of this Court in Kanhai Lal & Ors., Vs. Sharda Prasad 2003 All. CJ. 1440.

Learned counsel appearing for the respondents, however, submitted that the Court below have given cogent reasons for rejecting the application filed under Order IX Rule 9 CPC and there is no infirmity in the order which may warrant interference under Article 226/227 of the Constitution.

I have carefully considered the submissions advanced by the learned counsel for the parties.

It is not in dispute that the Miscellaneous Appeal that had been filed by the defendants against the grant of temporary injunction by the Trial Court was dismissed by the learned XIVth Additional District Judge, Varanasi by the order dated 4th March, 1998 and that while dismissing the said Miscellaneous Appeal a date for appearance of the parties before the Trial Court had not been fixed. The lower Appellate Court has elaborately dealt with the contention advanced by the learned counsel for the plaintiff-petitioner that in the absence of a date having been fixed by the Court while dismissing the Miscellaneous Appeal, they had no information as to when the plaintiff was required to appear before the Trial Court. The Courts below have recorded a finding of fact that though the file of the Trial Court had been summoned in the Miscellaneous Appeal but yet the Trial Court was maintaining a skeleton file in which the dates were being regularly fixed and the plaintiff, therefore, in such circumstances, was having knowledge of the dates fixed by the Trial Court. The contention of the learned counsel for the petitioner that the plaintiff had no knowledge of the date fixed before the Trial Court cannot, therefore, be accepted.

It also needs to be mentioned that the Suit had been dismissed on 21st October, 1998 and the application under Order IX Rule 9 CPC was filed only on 2nd September, 2006 i.e almost after a period of eight years. The Courts below have also observed that the plaintiff had kept quiet for a long period of eight years after the dismissal of the Miscellaneous Appeal that had been filed against the grant of temporary injunction This exhibits carelessness and negligence on the part of the plaintiff and no reason whatsoever was given by the plaintiff as to why he kept quiet for this period of eight years and did not care to find out what was happening in the Trial Court. The Courts below are justified in holding that this long delay of eight years had been left totally unexplained.

The decisions in the case of Mst. Katiji (supra) and Kanhai Lal (supra) also do not help the petitioner as in the present case the plaintiff-petitioner has miserably failed to explain the long delay of eight years in filing the application under Order IX Rule 9 CPC.

It is the contention of the learned counsel for the petitioner that the Suit could not have been dismissed under Order IX Rule 8 CPC. As noticed above, after the file had been received by the Trial Court on 21st August, 1998 the Trial Court fixed 26th August, 1998. Thereafter on 26th August, 1998 it fixed 17th September, 1998 on which date the counsel for the plaintiff was not present but counsel for the defendants was present. The Court fixed 13th October, 1998 for filing of written statement and 21st October, 1998 for framing of issues. On 13th October, 1998 the defendants did not file a written statement and the matter was fixed for 21st October, 1998 on which date the defendants filed the written statement along with an application seeking permission of the Court to file the written statement. Neither the plaintiff nor the counsel for the plaintiff was present on that date and, therefore, a copy of the application and the written statement could not be served on the counsel for the plaintiff before filing the application. The Court allowed the application and accepted the written statement and dismissed the Suit under Order IX Rule 8 CPC. In such circumstances, the contention of the learned counsel for the petitioner-plaintiff that the written statement could not have been filed without serving a copy cannot be accepted, as neither the plaintiff nor his counsel were present on 21st October, 1998. Even otherwise it cannot be contended that in the absence of a written statement the Court could not have dismissed the Suit under Order IX Rule 8 CPC.

The contention of the learned counsel for the petitioner that since the Trial Court accepted the written statement, even though copy of it had not been served on the counsel for the plaintiff, clearly shows that fraud had been committed cannot also be accepted. The dates were being regularly fixed by the Trial Court in the skeleton file and, therefore, it was obligatory on the part of the plaintiff to have kept track of the case. The counsel for the plaintiff was not present, and so the copy could not have been served and in any case this cannot lead to the inference that the fraud had been played by the Court. In this view of the matter, the decision in the case of Kaushalya Devi (supra) relied upon by the learned counsel for the petitioner does not help the petitioner. Even otherwise, the appellant therein had not been impleaded as a party respondent in the Suit and, therefore, the Supreme Court set aside the ex-parte decree.

Thus, for all the reasons stated above, the writ petition is dismissed. There shall be no orders as to costs.

Date: 20.11.2007

NSC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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