Amrinder Singh v. Vikram Dayal Dhillon & Ors.

Present: Mr. Amar Vivek, Advocate, for the petitioner. Mr. Ravish Bansal, Advocate, for Mr. Ashok Singla, Advocate, for the respondent No. 1 & 10 (c) A.N. JINDAL, J. (Oral) The trial court, vide judgment dated 9.3.2006, dismissed the suit whereas it left the counter claim as undecided. The appellate court accepted the appeal of the respondents and remitted the case back to the trial court with direction to implead legal representatives of defendants No. 6 and 7 and then to proceed in accordance with law. The remand order is now under challenge. Learned counsel for the petitioner, while assailing the impugned order 17.10.2007 passed by the Additional District Judge, Faridkot, has raised four-fold contentions. Firstly, that defendant No. 6 Kartar Kaur (since deceased) was allegedly colluding with the plaintiff, but no document has been placed on record in order to establish the alleged collusion and actually she had died before she had filed the amended written statement and thereafter without CR No. 992 of 2008 2 impleading the legal representatives, the court struck off her defence. The second contention is that the plaintiff had not claimed any relief against defendants No. 6 and 7, therefore, defendant No. 6 had no right to file the written statement or appeal. This contention is also without any merit. The plaintiff herself had impleaded defendants No. 6 and 7 as party defendants and in the absence of the written statement on their behalf, it was difficult to anticipate as to what rights they wanted to claim. So much so, even they could have filed counter-claim against the plaintiff, but the trial court shut off their mouth by proceeding against them exparte. The third contention raised is that the impugned order is not covered by the provisions of Rules 23 and 23-A of Order 41 of the Code of Civil Procedure (hereinafter referred to as 'the Code'), therefore, no such order could be passed. In this connection, it may be observed that a set procedure has been laid down in the Code, which governs the trial. Since the trial court completely deviated from the procedure laid down in the Code, therefore, the appellate court was right to set aside the impugned order and remand the case back. Defendants had every right to file amended written statement, however, before filing the written statement, defendant No.6 had died. But without taking notice of the fact that no legal representative of defendant No. 6 has been impleaded, the trial court struck off the defence of defendants No. 6 and 7. Relevant zimni orders in this regard are re-produced hereunder:- “Present: Sh. S.K. Jain, Advocate, for plaintiffs Sh. R.L. Jagga, Advocate, for defendant Nos. 1 to 3 Sh. S.N.L. Arora, Advocate, for defendant No.5. CR No. 992 of 2008 3 Sh. A.K.Girdhar, Advocate for defendant Nos. 6 and 7. Defendant No.4 already exparte. Ld. Counsel for the plaintiff has stated he has no objection if the application moved by the defendant nos. 6 and 7 for amendment of written statement is allowed. In view of the no objection by ld. Counsel for plaintiff the application under Order 6 Rule 17 CPC is allowed. To come up for filing amended written statement on 22.7.2001.

14.6.2001 Sd/- Civil Judge, Jr. Divn. Present: Sh. S.K. Jain, Advocate, for plaintiffs Sh. R.L. Jagga, Advocate, for defendant Nos. 1 to 3 Sh. S.N.L. Arora, Advocate, for defendant No.5. Sh. A.K.Girdhar, Advocate for defendant Nos. 6 and 7. Defendant No.4 already exparte. Amended written statement by defendant no. 6 and 7 not filed. Let the same be filed subject to cost of Rs. 200/- on

23.8.2001.

22.7.2001 “Present: As before Sd/- Civil Judge, Jr. Divn. Amended written statement not filed. Previous costs also not paid. Let the written statement be filed subject to cost of Rs. 400/- on 13.9.2001. CR No. 992 of 2008 4

23.8.2001 Sd/- Civil Judge, Jr. Divn.” Present: Sh. S.K. Jain, Advocate, for plaintiffs Sh. R.L. Jagga, Advocate, for defendant Nos. 1 to 3 Sh. S.N.L. Arora, Advocate, for defendant No.5. Sh. A.K.Girdhar, Advocate for defendant Nos. 6 and 7. Defendant No.4 already exparte. As stated by counsel for the defendant no. 6 and 7, defendant no.6 Dayalan, has died and it is not possible to file the written statement. To come up for further proceedings of

18.10.2001.

13.9.2001 Sd/- Civil Judge, Jr. Divn. Present: Sh. S.K. Jain, Advocate, for plaintiffs Sh. R.L. Jagga, Advocate, for defendant Nos. 1 to 3 Sh. S.N.L. Arora, Advocate, for defendant No.5. Sh. A.K.Girdhar, Advocate for defendant Nos. 6 and 7. Defendant No.4 already exparte. Amended written statement not filed by defendant nos. 6 and 7 despite availing of sufficient number of opportunities, that too subject to costs and therefore the defence of defendant nos. 6 and 7 stands struck off. To come up for evidence of plaintiff on 17.1.2002.

18.10.2001 Sd/- Civil Judge, Jr. Divn.” As such the court has not adopted the procedure as laid down in CR No. 992 of 2008 5 the Code before returning the findings on the issue and adjudicating the controversy involved in the suit, as such the order of remand was valid and no fault can be found in the same. Fourthly, it was contended that since defendant No. 7 was already the legal representative of defendant No. 6, therefore, there was no further necessity to implead the legal representatives of defendant No. 6. This fact could be noticed at the time of deciding the appeal. In this connection, it may be observed that neither the plaintiff nor co-defendants brought to the notice of the court that defendant No. 7 was legal representative of defendant No. 6. It may also be observed that at the time of impleading the legal representatives, the court has to issue notice to all the legal heirs. It is different matter whether those persons choose to represent the estate of the deceased. Lastly, it was contended that no counter-claim can be filed against the co-defendants. This court is not sitting over the issue whether the counter-claim can be filed or not, particularly in the absence of written statement on behalf of defendant No. 6 or 7. Furthermore, this plea can be raised before the trial court. No other argument has been urged. No merits. Dismissed. November 19, 2012 (A.N. JINDAL) JUDGE