Amit Kumar Jain, aged about 45 years, son of Kunda Mal Jain Resident of v. 1. Lalita Jain D/o Late Kundal Mal Jain, W/o Motilal Jain Resident of Bengali
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No.714 of 2023 ------ Amit Kumar Jain, aged about 45 years, son of Kunda Mal Jain Resident of Malviya Marg, Banshilal Chowk, P.O & P.S. Sardar, District-Hazaribag .... …. Defendant/Petitioner .... Versus 1. Lalita Jain D/o Late Kundal Mal Jain, W/o Motilal Jain Resident of Bengali Colony, P.O. & P.S. Sardar, District-Hazaribag .... 2. Rekha Jain, Wfie of Puran Mal Jain, Resident of Ratu Raod, .... .... Plaintiff/Respondent Pahadi Mandir, Near OPP. TCI Tarnsport, P.O-G.P.O. Ranchi, P.S. Sukhdeonagar, District-Ranchi 3. Sunita Jain, Wife of Dilip Jain, Resident of Ramnagar Opp. Shiv Mandir Gali No.5, P.O. & P.S. –Sardar, District-Hazaribag ....
Legal Reasoning
.... ------ PRESENT HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA .... Defendant/Respondent ------ For the Appellant For the Resp. No.1 For the Resp. No.2 : Mr. Yogendra Prasad, Adv. : Mr. Rajiv Nandan Prasad, Adv. Mr. Sushant Kr. Sinha, Adv. : Mr. Sunil Kumar Jaiswal, Adv. ------ JUDGMENT C.A.V. ON 02/01/2024 Pronounced On 21 / 03/2024 Heard learned counsel for the parties. 2. The instant civil miscellaneous petition has been filed for quashing/setting aside the order dated 13.06.2022 and 29.03.2023 (Annexure-2 and 5) passed in original suit No.122 of 2019 by the Civil Judge-VI, Senior Division, Hazaribagh, whereby and whereunder vide order dated 13.06.2022, the petitioner has been debarred from filing the written statement and vide order dated 29.03.2023, learned court below has refused to call the order dated 13.06.2022. 3. Learned counsel for the defendant/petitioner assailing the impugned orders has submitted that there was no willful default in filing the written statement before the concerned trial court rather the circumstances under which the delay took place has not been considered by the learned trial court. The partition suit was instituted on 03.06.2019 against the petitioner and respondent Nos.2 and 3 for claiming partition of suit land and carving out -2- C.M.P. No.714 of 2023 1/4th share of the plaintiff and allotment of separate Takhta. The petitioner after receipt of summons, appeared before the learned court below on 27.02.2020. Just after three weeks of the appearance of the petitioner, Covid-19 pandemic spread through out of the country and complete lock down was pronounced, which continued about two years and due to this reason, petitioner could not file his written statement within stipulated time. The petitioner was debarred from filing the written statement vide order dated 13.06.2022 and recall the application for the aforesaid order was also rejected vide order dated 29.03.2023 without admitting the written statement of the petitioner. Learned court below has failed to record any valid reason for passing such a harass order against the petitioner. 4. On the other hand, learned counsel for the respondents has submitted that learned court below has provided sufficient opportunity to the petitioner to file his written statement. Admittedly he appeared and filed his Vakalatnama on 27.02.2020 and in spite of lifting the lockdown period, the petitioner failed to filed his written statement till 13.06.2022 without seeking any further time or appearing before court below. Hence, the learned court below has rightly debarred the petitioner from filing his written statement, which suffers no illegality or infirmity calling for any interference by way of this petition, which is fit to be dismissed. 5. I have gone through the impugned order in the light of contentions raised on behalf of both sides. It appears that learned trial court while rejecting the application for recall the order of debarring him from filing the written statement as opined that after “proper scrutiny of record, it appears that the defendant No.1 appeared on 27.02.2020 and after giving several opportunity or direction for filing written statement, he did not file and comply the court’s order and lastly, the court debarred him from filing the written statement vide order dated 13.06.2022 after seven months of the above order, the present petition was filed without showing any satisfactory and reasons as to why, he could not file -3- C.M.P. No.714 of 2023 written statement in between 2 and 1/2 years, approx.” This petition has been filed on very belated stage without any sufficient reason and cause to be delayed of disposal of the suit. 6. From the above reason assigned by the learned court below, it is apparent that the ground taken by the petitioner has not been considered in right prospective of the case. It is a matter of the judicial notice that in between stipulated period the written statement was not filed by the petitioner as there was spreading Covid-19 pandemic not only in this country but the worldwide. 7. The Hon’ble Apex Court has also taken suo moto notice in the case of Suo Motu Writ Petition © No.3 of 2020 wherein vide order dated 10.01.2022, it was observed that “In cases where the limitation would have expired during the period between March 15, 2020 till February 28, 2022 notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from March 1, 2022. In the event the actual balance period of limitation remaining, with effect from March 1, 2022 is greater than 90 days, that longer period shall apply.” 8. The Hon’ble Apex Court in the case of Desh Raj V. Balkishan reported in (2020) 2 SCC 708 held that as regards the timeline for filing of written statement in a non-commercial dispute, continues to be directory and does not do away with the inherent discretion of courts to condone certain delays. Again the same view has been taken in the case of Shoraj Singh Vs. Charan Singh in Civil Appeal No.6304 of 2021 wherein the order dated 08.10.2021 in second para has held as follows:- “ We find that the High Court has completely misdirected itself not take written statement on record in view of the judgments of this court in ‘Kailash vs. Nanhku & Ors.’, reported din (2005) 4 SCC 480 and ‘Salem Advocate Bar Associations, Tamil Nadu Vs. Union of India’, reported in (2005) 6 SCC 344 wherein it was held that the period of 90 days for filing of written statement is directory.” 9. Under such circumstances, the impugned is not justified under law, which is hereby, set aside and this petition is allowed. -4- C.M.P. No.714 of 2023 10. The petitioner is directed to file his written statement in the suit before the court below within one month from the date of this order, which shall be accepted, the learned court shall proceed further in the trial of the case. 11.
Decision
Pending I.As. if any, are disposed off accordingly. 12. Let the copy of this order be sent back to the court below. High Court of Jharkhand, Ranchi Date: 21/ 03/2024 Pappu/N.A.F.R. (Pradeep Kumar Srivastava, J.)