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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Javed Iqbal Wani, J.
(Through Video Conferencing)
Ghulam Mohd.
Versus
Manzoor Ahmed and Ors.
OW104 No.97/2016 and IA No.01/2016
Decided on 21-11-2020
Constitution Of India1950 - Article 226 - Civil Procedure Code1908 - Amendment Act 1999 - Section 115 - Jurisdiction of superintendence - Suspension - Petitioner had engaged services of one advocate for contesting his case who however did not held himself responsible and did not contest same diligently so much so that an amount of was paid by petitioner to counsel upon being informed by his counsel that costs have been imposed and that despite requesting counsel to file written statement neither costs are deposited by counsel nor written statement filed resulting into passing of impugned order - That petitioner is an illiterate person and had reposed trust in counsel engaged by him before Trial court who did for welfare of client and defrauded petitioner - That petitioner is an innocent litigant and cannot be punished for negligence of his advocate in light of Apex court judgment passed in case titled - That impugned order is highly prejudicial in interest of justice equity and fair play and that petitioner is put to disadvantage because of negligence of his counsel –Held Court for reasons to be recorded in writing but which shall not be later than ninety days from date of service of summons significant to mention here that aforesaid provision came to be amended time limit of 90 days in proviso came to be substituted by 120 days with a rider that upon expiry of said period defendant shall forfeit right to file written statement and that court shall not allow written statement to be taken on record- aforesaid amendment is not attracted to case of petitioner in that same is prospective in nature and time limit for filing written statement in case of petitioner would be refore what is provided in un-amended supra proviso appear from perusal of record of proceedings of Trial court noticed and reflected herein above in preceding summons came to be issued by Trial court to defendant and that defendant did appear in response to summon supra as such time to file written statement would start running from date of service of summons upon defendant and defendant was required to file written statement within from such date or else proviso appended to from date of service of summons record reveals that defendant indisputably has failed to file written statement within stipulated period of time prescribed Order Rule or proviso appended reto even if it is assumed that summons were served upon him when he appeared before Trial court notwithstanding permission granted to defendant to file same in terms of order when his ex-parte proceedings were set aside by Trial court- Since defendant failed to file written statement within period prescribed Order CPC closure of right to file same in terms of impugned order by Trial court becomes irrelevant and insignificant - Petition dismissed
Judgment
Javed Iqbal Wani, J.—In the instant petition Supervisory jurisdiction of this court is invoked by the petitioner for quashment of order dated 10.03.2016 (hereinafter for short the impugned order) passed by the learned 2nd Additional District and Sessions Judge, Jammu, (hereinafter for short the Trial court), in file No. 75/ Suit titled as “Manzoor Ahmad and Ors. Vs. Ghulam Ahmad and Ors”.
2. In terms of impugned order the right to file written statement of the defendant petitioner herein is closed by the Trial court after the Trial court notices that the defendant has failed to deposit costs imposed upon him for setting aside ex-parte proceedings initiated vide order dated 20.01.2016.
3. The perusal of record of the Trial court reveals following facts being relevant herein for adjudication of the instant petition: -
3(a) A suit for Specific Performance of an agreement to sell dated 08.10.1999 qua the land measuring 02 Kanals covered under Khasra No. 2309 situated at village Kot Jammu, is filed by the plaintiffs respondents herein against the defendant.
3(b) The defendant is summoned after the aforesaid suit is entertained by the Trial court on 10.01.2015 and case is posted for 11.02.2015 on which date plaintiffs appear however, defendant did not appear and case is posted for 11.03.2015.
3(c) On 11.03.2015 counsel for plaintiffs appear and defendant petitioner herein appears in person and prays for copy of the plaint having been furnished to him in open court requiring him to file written statement on next date i.e. 17.04.2015, on which date no proceedings in the suit are conducted on account of suspension of work by the lawyers and the case is posted for 13.05.2015.
3(d) On 13.05.2015 plaintiffs appear, however, defendant remains absent and case is posted for 11.06.2015.
3(e) On 11.06.2015 plaintiffs appear and defendant remains absent. Ex-parte proceedings are initiated against the defendant and plaintiffs are directed to lead evidence in ex-parte and case is posted for 06.08.2015.
3(f) On 06.08.2015 plaintiffs appear, however, defendant did not appear and case is posted for 09.09.2015 on which date counsel for the plaintiffs appear and defendant appears in person and seeks time to file an application for setting aside ex-parte proceedings and the case is posted for 05.10.2015.
3(g) On 05.10.2015 plaintiffs appear along with their counsel so also appears defendant along with his counsel. Counsel for plaintiffs seeks time to file objections to the application filed by the defendant for setting aside ex-parte proceedings. Case is posted for 14.11.2015.
3(h) On 14.11.2015 counsel for plaintiffs appear and defendant as well appears. Counsel for plaintiffs seek further time to file objections to the application. Case is posted for 09.12.2015, on which date plaintiffs and their counsel remains absent while as defendant appears along with his counsel and case is posted for filing of objections of the plaintiffs to the application of the defendant and case is posted on 01.01.2016.
3(i) On 01.01.2016 counsel for the parties appear and objections are filed by the plaintiffs to the application of the defendant and application is posted for arguments on 20.01.2016.
3(j) On 20.01.2016 after hearing the counsel for the parties, ex-parte proceedings imitated against the defendant are set aside subject to the payment of costs of Rs. 700/=. Further the defendant is directed to file written statement on or before the next date i.e 13.02.2016.
3(k) On 13.02.2016 none appears for the parties and the case is adjourned for 10.03.2016 on account of non-availability of Presiding officer.
3(l) On 13.03.2016 the impugned order supra is passed by the Trial court.
4. The petitioner being aggrieved of order dated 13.03.2016 supra assails the same inter-alia amongst others on the following grounds which are briefly extracted and referred here under: -
(i) That the petitioner had engaged services of one advocate namely Arun Gandotra for contesting
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