The trial court should not close the opportunity of filing the written statement while deciding the application under Order 7 Rule 11 CPC.

ORDER

1. Heard learned counsel for the parties.

2. The present writ petition has been filed against the order dated 15.10.2014 passed by Additional District Judge No. 2, Jodhpur Metropolitan, whereby the application preferred by the petitioner under Order 7 Rule 11 read with Section 151 CPC was rejected and filing of the written statement by the petitioner was closed.

3. Learned counsel for the petitioner submits that respondent preferred a suit before the trial court for recovery of the money due from the petitioner and the learned trial court vide order dated 12.09.2012, rejected the application preferred by the petitioner under Order 9 Rule 11 CPC for setting aside the ex parte judgment and decree dated 25.11.2005. Against the rejection of the application under Order 9 Rule 11 CPC, the petitioner preferred S.B. Civil Misc. Appeal No. 2218/2012 before this Court and the same was allowed vide order dated 09.05.2014. The parties were directed to appear before learned trial court and the learned trial court was directed to proceed with the suit from the stage of service of summons and was also directed to decide the same within a period of one year. In these circumstances, the parties appeared before the learned trial court and the petitioner preferred an application under Order 7 Rule 11 CPC. While deciding that application, the learned trial court vide impugned order dated 15.10.2014, closed the filing of written statement by the petitioner. Aggrieved of the same, the present writ petition has been filed.

4. Learned counsel for the petitioner submits that in view of the Judgment of this court in Laxmi Narayan Sharma Vs. Rajeshree Khandewal reported in 2018 1 WLN 196 decided on 17.10.2016 and in Vijay Raj Vs. Shankar Lal reported in 2016 3 WLN 128 decided on 25.01.2016, the learned trial court while deciding the application preferred under Order 7 Rule 11 CPC cannot close the filing of the written statement by the petitioner. He, therefore, prays that the writ petition may be allowed, the order dated 15.10.2014 may be quashed and set aside and the learned trial court may be directed to grant an opportunity to the petitioner to file written statement before proceeding with the matter.

5. Per contra, learned counsel for the respondent vehemently opposes the submissions made before this court and submits that the suit is pending consideration before learned trial court since the year 2005 and the petitioner just to avoid the payment of the amount due to the respondent is lingering on the suit proceedings on one count or the other.

6. Learned counsel for the respondent, while supporting the order passed by the learned trial court on 15.10.2014, submits that no further opportunity may be granted to the petitioner for filing the written statement as the suit is pending consideration before the learned trial court since the year 2005. Learned counsel for the respondent further submits that even after the expiry of 90 days, the written statement has not been filed by the petitioner.

7. I have considered the submissions made at the Bar and have gone through the order dated 15.10.2014 and other relevant record of the case.

8. The fact of the matter that the suit for recovery of the money due is pending consideration before the learned trial court since the year 2005 is admitted by both the sides and in those proceedings, despite the direction having been given by this court on 09.05.2014, the matter is still pending consideration before the trial court and the same has not been decided so far. It is also noted that vide order dated 15.10.2014 while deciding the application preferred by the petitioner under Order 7 Rule 11 CPC, the learned trial court has closed the opportunity of filing of the written statement by the petitioner.

9. It is a settled law that while deciding the application under Order 7 Rule 11 CPC, the learned trial court shall not pass any order for closing the written statement on behalf of the respondent, more particularly, i