Director, Ayurved Department, Ajmer & Ors. v. Kishore Singh & Anr.

Kishore Singh son of Shri Balu Ram and Another Date of Judgment :::: 01/02/2010. Hon'ble Mr. Justice Dalip Singh Mr. M. Faisal Baig, Dy.Govt. Counsel for the Petitioners. Mr. Amit Singh Shekhawat, Counsel for the Respondents By the Court : *** Heard learned counsel for the parties. The petitioners have challenged the order passed by the learned trial Court dated 19.05.2009 (Annexure-1) by which the application submitted by the respondent-plaintiffs for reviewing the order dated 15.11.2008 has been allowed. Facts, in brief, are that a suit came to be filed by the respondent-plaintiffs for declaration and permanent injunction in which an order dated 09.04.2003 came to be passed by the learned trial Court closing the right to file the written-statement of the defendant-petitioners. 2 S.B. Civil Writ Petition No.15496 of 2009. Director, Ayurved Department, Ajmer and Others VERSUS Kishore Singh son of Shri Balu Ram and Another The said order dated 09.04.2003 was challenged before this Court by the petitioners in S.B. Civil Writ Petition No.4407 of 2003. The writ petition filed by the petitioner came to be dismissed by this Court vide order Annexure-3 dated

30.07.2003. Thereafter, the suit filed by the plaintiff-respondents came to be dismissed in 2004, as the plaintiffs failed to lead evidence before the learned trial Court. On an appeal filed by the plaintiffs, the learned Appellate Court allowed the appeal vide judgment dated

05.09.2005 (Annexure-4) with the directions that the learned trial Court would permit the plaintiff to lead oral as well as documentary evidence in support of his plea raised in the plaint. When the matter was remanded to the learned trial Court by the learned Appellate Court the defendant-petitioners again moved an application for permitting the defendants to file the written-statement. The said application came to be allowed by the learned trial court vide order dated 15.11.2008 on payment of costs of Rs.1500/-. The plaintiffs approached this Court by means of a writ petition as S.B. Civil Writ Petition bearing No.215 of 2009 challenging the order dated 15.11.2008 and contending that this Court had already rejected the prayer of the defendants for being permitted to file the written-statement in the earlier writ 3 S.B. Civil Writ Petition No.15496 of 2009. Director, Ayurved Department, Ajmer and Others VERSUS Kishore Singh son of Shri Balu Ram and Another petition vide order dated 30.07.2003. This Court hearing the writ petition bearing No.215 of 2009 vide order Annexure-5 dated 15.01.2009 directed the plaintiffs to file a review petition before the learned trial Court, bringing to its notice the fact of the passing of the order dated

30.07.2003 and for deciding the matter in the light of the above. A review petition came to be filed by the plaintiff, which has been allowed by the learned trial Court by the impugned order dated 19.05.2009 and the order dated

15.11.2008 permitting the defendant-petitioners to file the written-statement has been recalled. It is in this light that the present writ petition has come to be filed challenging the order dated 19.05.2009. Learned counsel for the petitioners submitted that so far as the order dated 30.07.2003 (Annexure-3) is concerned that came to be passed in view of the fact that at the relevant time it has not been settled as to whether or not the provisions of Order 8 Rule 1, C.P.C. as amended by the Act of 2002 were mandatory/directory and it was only thereafter the Hon'ble Supreme Court clarified the position in Salem Bar Association case that the provisions of Order 8 Rule 1, C.P.C. are directory in nature and not mandatory as such it is open for the trial Court to grant opportunity for filing the written- statement beyond the period of 90-days. 4 S.B. Civil Writ Petition No.15496 of 2009. Director, Ayurved Department, Ajmer and Others VERSUS Kishore Singh son of Shri Balu Ram and Another Learned counsel contended that taking into consideration the aforesaid judgment of the Hon'ble Supreme Court and the fact that the matter has been remanded by the learned Appellate Court to the learned trial Court for decision afresh after affording an opportunity to the plaintiffs to lead evidence the defendant could have been permitted in the light of the subsequent developments to file the written-statement after remand. So far as the contentions of the learned counsel for the petitioners is concerned, I am of the view that it would not be appropriate for this Court in a Single Bench to take a contrary view than what has been taken by the learned Single Judge of this Court while deciding the earlier writ petition inter- party vide order Annexure-3 dated 30.07.2003, since, the matter stands conclusively decided by the learned Single Bench of this Court. This writ petition is accordingly dismissed. Ashok/ (Dalip Singh), J.