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SMT. TARA GUPTA & OTHERS versus IX A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Smt. Tara Gupta & Others v. Ix A.D.J. & Others - WRIT - C No. 15627 of 2004 [2007] RD-AH 9472 (17 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.23

Civil Writ Petition No.15624 of 2004

Smt. Tara Gupta and others Vs. Additional District Judge and another

AND

Civil Writ Petition No.15627 of 2004

Smt. Tara Gupta and others Vs. Additional District Judge and another

Hon'ble S.U. Khan, J.

List revised. No one appears on behalf of the contesting respondent No.2.

Heard learned counsel for the petitioner.

Petitioners in both the writ petitions are plaintiffs in two suits, i.e. O.S. No.504/02 and O.S. No.505/02. First writ petition arises out of orders passed in first suit and second writ petition arises out of orders passed in second suit. Respondent No.2 in both the writ petitions, i.e. Shri Shree Kishan Gupta, is the sole defendant in both the suits. Both the suits were filed for possession of different portions of property No.21/68, Gulab Bhawan, Freeganj, Hari Parwat Ward, Agra. In spite of several opportunities to file written statement, defendant did not file written statement in the suits. Accordingly, trial court fixed 30.01.2003 and directed that written statement should positively be filed by the said date. Defendant did not file written statement even on 30.01.2003 and sought further adjournment. The matter was adjourned to 14.02.2003. Even on 14.02.2003, no written statement was filed. Ultimately by judgment and decree dated 27.02.2003, suits were decreed ex parte under Order 8 Rule 10, C.P.C. Against the said judgment and decree, defendant filed restoration applications as well as appeals. Appeals were dismissed for non-payment of court fees. Restoration applications were rejected on 18.12.2003. Against the said judgments and orders, defendant-respondent No.2 filed miscellaneous appeals being Civil Misc. Appeals No.28/04 and 29/04. Both the appeals were allowed on 25.03.2004. These writ petitions are directed against orders dated 25.03.2004. The Appellate Court held that even though defendant-appellant was unduly delaying the proceedings and not filing the written statement, still on the crucial date i.e. 14.02.2003, he was at Allahabad and ill, hence restoration application deserved to be allowed. Accordingly, restoration application was allowed on payment of Rs.1,000/- in each case.

Supreme Court has held that in spite of pre-emptive language of Order 8 Rule 1, C.P.C., in compelling circumstances, defendant may be permitted to file written statement even after 90 days of service of summons of suit. However, Supreme Court has also held that in such situation heavy cost must be awarded vide "Kailash v. Nanhku" AIR 2005 SC 2441 and "Salem Advocate Bar Association, Tamilnadu Vs. Union of India" 2005 (2) ARC 588 (S.C.) In the instant case, the Appellate Court has clearly recorded a finding that defendant was unduly delaying the proceedings of the suit.

I am of the opinion that even though the order of the Appellate Court allowing the restoration application does not call for interference in exercise of writ jurisdiction, however the cost of Rs.1,000/- awarded in each case is highly inadequate. The conduct of the defendant and the extent of the property involved warranted that good cost should have been imposed vide "M. K. Prasad v. P. Arumugam", AIR 2001 SC 2497. Property in each case consists of five rooms and is situate in Agra. Accordingly, orders passed by the Appellate Court are modified and it is directed that restoration applications of the defendant-respondent No.2 in both the suits shall stand allowed on payment of Rs.25,000/- as cost in each suit and on filing of written statement.

Both the parties are directed to appear before the trial court on 06.08.2007. On the said date, defendant-respondent No.2 shall pay to the land-lords or deposit in Court for immediate payment to landlords cost of Rs.25,000/- in each suit (Total Rs.50,000/-). On the said date written statements must also be filed by the defendant-respondent No.2 in each suit. In default of compliance of any of these two conditions, this order shall stand automatically vacated and restoration applications shall stand dismissed. If costs are deposited and written statements are filed on 06.08.2007, then suits shall positively be decided within four months therefrom.

Both the writ petitions are accordingly disposed of.

Office is directed to supply a copy of this order to Sri Sanjay Mishra, learned counsel for the defendant-respondent no.2 by 21.05.2007. Learned counsel for the petitioner is also directed to send photostat copy of the certified copy of this judgment to defendant-respondent No.2 through registered post within a week and supply a similar copy to Sri Sanjay Mishra, learned counsel for the respondent no.2 within the same time.

Date:17.05.2007

NLY


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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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