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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
Smt. Rama alias Rita Devi W/o Shri Ranjeet Singh – Petitioner
Versus
Ashwani Kumar S/o Late Shri Sarwan Singh – Respondent
Civil Misc. Petition Main (Original) No. 33 of 2022
Decided On : 05-03-2022
Code of Civil Procedure,1908 - Order 7 - Rule 11 - Civil suit - Possession - Mandatory injunction - Civil suit was filed by respondents No. 1 to 5 for possession and mandatory injunction on basis of title against six defendants - Case status document produced by learned counsel for respondents No. 1 to 5 during hearing of case gives impression that defendants were served in suit is has not been disputed by learned counsel for the petitioners - First date given for filing written statement as per the case status document - Matter was thereafter listed before learned Trial Court for filing of written statement - Case was thereafter fixed for proper orders - Perhaps on account of COVID-19 pandemic, matter could not be taken up and was fixed for purpose of service - It was again posted for filing of written statement - Whether respondents had furnished proper and satisfactory explanation for such a delay – Whether notwithstanding the pendency of an application under Order 7 Rule 11 of the Code of Civil Procedure (in short ‘CPC’) moved by the defendant about two years after the institution of the suit, can he be directed to file written statement as last opportunity, is the point involved in the present petition.
Finding of the Court:
Defendants even after entering appearance in the matter two years ago, have still not filed their written statement. No doubt, application under Order 7 Rule 11 CPC can be filed at any stage and this application has to be adjudicated first before proceeding with the trial. Nonetheless Order 7 Rule 11 CPC proceedings have been held to be independent of filing of written statement. There is no embargo upon the defendants to file written statement before adjudication of Order 7 Rule 11 CPC application. Pendency of Order 7 Rule 11 CPC application filed two years later to the date of appearance of defendants in the civil suit cannot be taken as a ruse for not filing the written statement. Provisions of Order 8 Rule 1 CPC cannot be simply ignored or else under the guise of moving frivolous Order 7 Rule 11 CPC applications, the defendants can always protract the trials, thereby defeating not only the object of the provisions, but also the cause of justice. Also as per the impugned order, it was the defendants, who prayed for more time to file written statement. Learned Trial Court accordingly granted them one last opportunity. There is nothing wrong in the approach of the learned Trial Court.
Result: Petition dismissed
ORDER :
1. Whether notwithstanding the pendency of an application under Order 7 Rule 11 of the Code of Civil Procedure (in short ‘CPC’) moved by the defendant about two years after the institution of the suit, can he be directed to file written statement as last opportunity, is the point involved in the present petition.
2. Facts:
(i) A civil suit was filed by respondents No. 1 to 5 for possession and mandatory injunction on the basis of title against six defendants. The suit was filed in December, 2019. The case status document produced by learned counsel for respondents No. 1 to 5 during hearing of the case gives the impression that the defendants were served in the suit by April, 2020. This has not been disputed by learned counsel for the petitioners. First date given for filing the written statement as per the case status document was 09.04.2020. The matter was thereafter listed before the learned Trial Court on 19.06.2020, 22.09.2020, 10.11.2020, 06.01.2021 and 22.03.2021 for filing of written statement. The case was thereafter fixed for proper orders on 06.05.2021 and 12.07.2021. Perhaps on account of COVID-19 pandemic, the matter could not be taken up and was fixed on 21.08.2021 for the purpose of service. It was again posted for filing of written statement on 01.11.2021.
(ii) On 01.11.2021, instead of filing the written statement, defendants No. 1 and 2 (petitioners herein) moved an application under Order 7 Rule 11 read with Section 151 CPC for rejection of plaint. The rejection was sought on the ground that the suit filed by the plaintiffs was undervalued for the purposes of court fees and jurisdiction. That the plaintiff had deliberately not paid the requisite court fees in terms of Section 7(5)(e) of the Himachal Pradesh Court Fees Act, 1968. It was pleaded that the learned Trial Court lacked pecuniary jurisdiction to entertain and try the suit.
(iii) Vide order dated 01.11.2021, learned Trial Court took cognizance of the Order 7 Rule 11 CPC application and directed the plaintiffs to file reply to the application. Learned Trial Court also noticed that the written statement had not been filed. The defendants prayed for time to file the written statement. One last opportunity was granted by the learned Trial court to file written statement, failing which the opportunity for filing the written statement was to be closed. The matter was ordered to be next listed for 22.02.2022.
The order dated 01.11.2021, to the extent it grants last opportunity to the defendants to file written statement, failing which they were not to be granted any further opportunity to file the same, has been assailed by defendants No. 1 and 2 (petitioners) in the instant petition.
3. Contentions:
(i) Sh. Karan Singh Kanwar, learned counsel for the petitioners (defendants No. 1 and 2), relying upon Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557 and R.K. Roja vs. U.S. Rayudu and Another, (2016) 14 SCC 275 argued that the learned Trial Court erred in law in directing defendants No. 1 and 2 to file written statement before the decision of their application moved under Order 7 Rule 11 CPC. Learned counsel submitted that the question of filing the written statement would come only after the adjudication of application moved under Order 7 Rule 11 CPC. By granting last opportunity to defendants No. 1 and 2, they cannot be compelled to file the written statement during pendency of their Order 7 Rule 11 CPC application. The approach of the learned Trial Court is wholly erroneous and illegal.
(ii) According to Sh. Ashok K. Tyagi, learned counsel for respondents No. 1 to 5 (plaintiffs), defendants No. 1 and 2 had been unnecessarily dragging the litigation. They had not opted to file the written statement even after grant of umpteenth number of opportunities during the last about two years. Under the pretext of filing the application under Order 7 Rule 11 CPC, the time limit for filing the written statement stipulated under Order 8 Rule 1
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