Procedural rules should not obstruct the pursuit of justice; parties must be allowed to present defenses unless substantial prejudice would result.

Order :

ARUN MONGA, J.

1. The petitioner (defendant no.2/1 in the pending suit) seeks quashing of an order dated 14.09.2023 (Annex.6) passed by the learned Additional District Judge No. 5, Jodhpur Metropolitan, in Civil Original Suit No. 73/2018, whereby the Trial Court rejected the petitioner's application under Section 151 of the CPC seeking to take on record the written statement filed by him.

2. Pending Civil Original Suit No.73/2018 is by now deceased - Smt. Indira Devi her LR’s, seeking a decree of partition and permanent injunction. Defendant No.1 filed a written statement denying the plaintiffs’ claims, asserting that the suit property had already been partitioned.

2.1. Smt. Chand Kanwar, sister of deceased-plaintiff Indira Devi (mother of the petitioner – defendant No.2/1) passed away on 03.06.2003, i.e., prior to the filing of the suit in the year 2018. Accordingly, the petitioner, being her legal representative (LR), was impleaded as defendant No.2/1 in the civil suit, along with his sister, Smt. Rekha, as defendant No.2/2.

2.2. Indira Devi (sister of predeceased Smt. Chand Kanwar) allegedly executed a Will on 04.01.2021.

2.3. The plaintiffs’ (respondents herein) evidence was closed vide order dated 15.01.2021. During the pendency of the suit, Indira Devi (defendant no.1) passed away on 02.10.2023.

2.4. Subsequently, Gaurav Soni filed an application under Order 22 Rule 3 CPC, claiming to be a proper and necessary party on the basis of a Will allegedly executed by Indira Devi on 04.01.2021.

2.5. As for the petitioner (defendant No.2/1), he could not earlier file a written statement due to non-service of notice. Upon learning of the suit and noting that no ex parte order had been passed against him, he filed an application under Section 151 CPC requesting the court to take his written statement on record. However, the trial court rejected this application on 14.09.2023. Hence the instant petition.

2.6. In the interregnum, the trial court allowed the application filed by Gaurav Soni under Order 22 Rule 3 CPC on 16.11.2023. Earlier thereto, the plaintiff’s evidence had already been closed, however, upon being brought on record the legal heir of plaintiff was allowed to adduce evidence. Consequently, the trial is now at the stage of the plaintiff’s evidence.

3. Learned counsel for the petitioner argues that the Trial Court rejected the petitioner’s application without properly considering the facts and circumstances of the case. There is/was sufficient cause for delay in filing the written statement, as the notice of the suit was never served upon petitioner, leaving him unaware of the suit’s pendency. Despite this crucial fact, the Trial Court declined to taken on record the written statement.

3.1. He would urge that the provision regarding filing the written statement cannot be treated as mandatory and inflexible. The Code of Civil Procedure is procedural and intended to facilitate justice, not to defeat it. Since no ex-parte order was passed against the petitioner, the trial court should have granted further time to file the written statement. It is a settled principle that procedural rules are meant to ensure justice. Denying the petitioner the opportunity to place his defence on record deprives the Court of adjudicating on merits and would result in gross injustice.

3.2. Further, the delay arose solely because the summons were not served and the petitioner was unaware of the suit.

4. Opposing the aforesaid submissions, learned counsel for the respondents argues that proper service of summons had already been effected on the petitioner’s wife, and an advocate had also given an undertaking to file the vakalatnama on his behalf. Despite several opportunities, the petitioner failed to file the vakalatnama. He further submits that no ex parte proceedings were initiated because the suit was for partition. Granting another chance to the petitioner at this stage would unnecessarily delay the trial, thus the petition deserves dismiss