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2008 UAD 495
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice B.C. Kandpal
Writ Petition No. 1738 (M/S) of 2006
SMT. MEENA CHAUDHARY SHARMA & ORS. – Petitioners
Versus
SHRI VED PRAKASH ARORA – Respondent
Decided on : 28.09.2007
(B) C.P.C., 1908, Order 6, Rules 2, 7, 17 — Provisions of — Scope of — Provisions of Rules 2, 7, and 17 of Order 6 make it clear that the original defendant can raise new defence only through amendment in written statement — Substituted defendants can, however, make any defence — Only limitation is that the defence so raised must be appropriate to their character as legal representatives of the deceased defendant. (Para 16)
¼v½ nhokuh izfd;k lafgrk] 1908] vkns'k 22] fu;e 4 & 'kCnksa] ße`rd izfroknh ds fof/kd izfrfuf/k ds :i esa dksbZ izR;qRrjÞ dk vkuk & dk vFkZ & budk vFkZ gS fd ;fn izfrfuf/k izfroknh dksbZ u;k izR;qRrj nsuk pkgrk gS rks mls izFker% viuh oS;fDrd {kerk esa] eqdnesa esa Lo;a dks izfroknh ds :i esa n'kkZuk gksxk & tgk¡ ij izfrfufèk izfroknh us] dHkh Hkh vnkyr ds le{k] viuh O;fDrxr {kerk esa Lo;a dks izfrokfn;ksa ds :i esa n'kkZ;s tkus dk izkFkZuk i= ugha fn;k & os ogh u;h nyhy gh yk ldrs gSa tks muds] e`rd izfroknh ds fof/kd izfrfuf/k ds :i esa ykbZ tk;s & os O;fDrxr :i esa] O;fDrxr nkosnkj ds :i esa u;h nyhy ykus dk nkok ugha dj ldrs gSaA
¼izLrj 14½
¼c½ nhokuh izfd;k lafgrk] 1908] vkns'k 6] fu;e 2] 7] 17 & ds izko/kku & dk foLrkj & vkns'k 6 ds fu;e 2] 7 o 17 ds izko/kku ;g Li"V :i ls crkrs gSa fd ekfyd izfroknh] fyf[kr dFku esa flQZ la'kks/ku ds }kjk gh dksbZ u;h nyhy yk ldrk gS & tcfd LFkkukié izfroknh dksbZ lk Hkh izR;qRrj yk ldrs gSa & flQZ ;gh ,d ckè;rk gS fd bl izdkj yk;k x;k izR;qRrj] muds] e`rd izfroknh ds] fof/kd izfrfuf/k gksus ds :i esa gksA ¼izLrj 16½
Hon'ble B.C. Kandpal, J.
By way of present writ petition, the petitioners have challenged the impugned judgment and order dated 2.11.2006 passed by District Judge, Dehradun in Civil Revision No. 4 of 2006 filed by the respondent/plaintiff.
2. Brief facts leading to the present petition, as per the petitioners, are that in the year 1996, part of land belonging to Smt. Rahiman Bai Guddi, late mother of the petitioners, consisting of Khasra Nos. 25/3 and 46/11 situated in Village Haripur Kalan, which was purchased by Smt. Rahiman Bai Guddi in the year 1968, was shown to be reshuffled on papers in nexus of revenue officials with one Smt. Kulwant Kaur Sidhu and Shri Ved Prakash Arora, who is the plaintiff/respondent in the present case. In the year 1998, Smt. Rahiman Bai Guddi filed correction application before the revenue authorities and the notice was issued to the plaintiff/respondent by the court of S.D.M. Rishikesh.
3. The plaintiff/respondent on the basis of survey entries, filed a suit bearing Suit no. 12 of 1999 for injunction against late Smt. Rahiman Bai Guddi, as defendant no. 1 and Smt. Meena Chaudhary Sharma, daughter of Late Smt. Rahiman Bai Guddi as defendant no. 2 before the court of Civil Judge (J.D.), Rishikesh, Dehradun. (It is pertinent to mention here that Smt. Meena Chaudhary Sharma is petitioner no. 1 before this Court).
4. In the aforesaid suit, a joint written statement was filed by the petitioners stating therein that the plaintiff/respondent had fabricated and forged various revenue documents as well as sale deeds. It was pleaded in the written statement that an F.I.R. against the present respondent/plaintiff had also been registered along with other persons during the pendency of the suit.
5. After the expiry of Smt. Rahiman Bai Guddi, the respondent/plaintiff moved an amendment application by which he sought amendment in the memo of parties in the plaint as well as certain amendments in the body of plaint and the cause of action. The respondent/plaintiff by way of amendment claimed relief against all the legal heirs of Smt. Rahiman Bai Guddi. The petitioner no. 1, who was defendant no. 2 in the suit, was not arrayed separately as legal heir, but the relief was also claimed against defendant no. 2 being legal heir of the deceased defendant no. 1 - Smt. Rahiman Bai Guddi.
6. The trial court after receiving the amended plaint permitted the petitioners/defendants to file additional written statement vide order dated 25.11.2005. The petitioners/defendants filed additional written statement on 8.3.2006 as Document No. 164A-1. The respondent/plaintiff filed objections to the additional written statement and thereafter the trial court after having considered the arguments advanced by the parties, rejected the objections/Document No. 168-G filed by the respondent/plaintiff.
7. The respondent/plaintiff filed a civil revision against the order of Civil Judge before the District Judge and the District Judge on 10.5.2006 dismissed the revision in limine. The respondent/plaintiff thereafter filed a writ petition and the High Court vide order dated 11.7.2006 disposed of the writ petition with the direction that the matter is sent back to the revisional court for deciding afresh in the light of the observation made in the body of the judgment. The revisional court after considering the arguments advanced by learned counsel for the parties, allowed the revision vide order dated 2.11.2006.
8. Feeling aggrieved by the aforesaid impugned order, the petitioners have filed this writ petition seeing the relief for setting aside the impugned order passed by the District Judge.
9. Heard learned counsel for the parties and perused the record.
10. Learned counsel for the petitioners has submitted before me that the revisional court passed the impugned order without discussing the written submission filed by the petitioners before it and has adopted incorrect presumption in allowing the revision. It has also been submitt
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