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2009 Supreme(MP) 1135
A.M. Naik, J.
Girwar Singh v. Jhanak Singh and another
First Appeal No. 150 of 2006 (Gwalior): against the decree and
judgment of First Additional District Judge, Vidisha in
Civil Suit No.46-A of 2005; Decided on 3.12.2009.
D.R. Rahul for appellant
Headnote:Civil P.C., 1908 -- O.8 R.1 -- M.P. Civil Courts Rules, 1961 - Rr.110-A and 110-B -- limitation for filing written statement -- may be extended in proper cases -- documents referred in plaint -- copies of documents so referred not supplied to defendant despite demand -- provision under R.II0-A is mandatory -- Court is under obligation to get the copies supplied -- it is sufficient ground to condone the delay in filing written
Since the defendant-appellant by way of submitting an application under section 151 of CPC had made a demand on 17.8.2005 for supply of documents referred to in the plaint including the alleged sale agreement, it was obligatory on the part of the learned trial Judge to ensure the supply of such documents to the defendant-appellant to enable him to prepare and submit a complete and effective written statement. Grant of opportunity to file written statement is not merely a formality. It is to be granted with a purposeful manner in order to enable the defendant to take a proper defence after perusing and examining the documents relied upon by the plaintiff. It is not merely a procedural formality. Mandatory character of rule 110-A (supra), has been totally overlooked by the learned trial Judge while ordering the closure of right to file written statement and equally while dismissing the application under section 151 CPC. Thus, both the orders are not found sustainable in law. It is held that non-availability of the copies of documents with the defendant which were referred to in the plaint and relied upon by the plaintiff would constitute a sufficient cause for not filing the written statement within the period of limitation and the same would constitute a sufficient cause for condoning the delay in filing the written statement. AIR 2006 SC 396, AIR 2007 SC 2571 and AIR 2008 SC 2099 followed.[Para 14
flfoy izfdz;k lafgrk] 1908 && vk- 8 fu- 1 && e-iz- flfoy U;k;ky; fu;e] 1961 && fu- 110&d rFkk 110&[k && fyf[kr dFku izLrqr djus ds fy, ifjlhek mPp ekeyksa esa c<+kbZ tk ldrh gS && okni= esa fufnZ"V nLrkost & bl izdkj fufnZ"V nLrkostksa dh izfrfyfi;ka ek¡x ds ckotwn izfroknh dks iznk; ugha dh xbZ && fu- 110&d ds v/khu mica/k vkKkid gS && U;k;ky; izfrfyfi;ka iznk; djkus ds fy, ck/;rk/khu gS && fyf[kr dFku izLrqr djus esa foyac dks ekQ djus dk ;g i;kZIr vk/kkj gSA
pw¡fd izfroknh& vihykFkhZ us flfoy izfdz;k lafgrk dh /kkjk 151 ds v/khu vkosnu izLrqr dj vfHkdfFkr fodz; djkj lfgr okni= esa fufnZ"V nLrkostksa ds iznk; ds fy, 17-8-2005 dk ek¡x dh Fkh] fo}ku fopkj.k U;k;k/kh’k dsa rS;kj rFkk izLrqr djus esa leFkZ cukus ds fy, iznk; lqfuf‘pr djuk ck/;dkjh FkkA fyf[kr dFku izLrqr djus dk volj iznku fd;k tkuk ek= vkSipkfjdrk ugha gSA oknh }kjk voyafcr nLrkostksa dk ifj"khyu rFkk ijh{kk djus ds i‘pkr~ mfpr izfrj{kk ysus ds fy, izfroknh dks leFkZ cukus ds fy, iz;kstuiw.kZ jhfr ls bls iznku fd;k tkuk gSA ;g ek= izfdz;kRed vkSipkfjdrk ugha gSa fo}ku fopkj.k U;k;k/kh’k }kjk fyf[kr dFku izLrqr djus dk vf/kdkj lekIr djrs le; rFkk leku :i ls flfoy izfdz;k lafgrk dh /kkjk 151 ds v/khu vkosnu [kkfjt djrs le; fu;e 110&d ¼iwoksZDr½ dh vkKkid Lo:i dh iw.kZr% vuos{kk dh xbZ gSA bl izdkj] nksuksa vkns‘k fof/k eas ekU; fd, tkus ;ksX; ugha ik, tkrs gSA ;g vfHkfu/kkZfjr fd;k tkrk gS fd izfroknh dks mu nLrkostksa dh izfrfyfi;ksa dh vuqiyC/krk tks okni= esa fufnZ"V fd, x, Fks rFkk oknh }kjk ftudk voyac fy;k x;k Fkk] ifjlhek dh dkykof/k ds Hkhrj fyf[kr dFku izLrqr ugha djus ds fy, i;kZIr gksxk rFkk ogh fyf[kr dFku izLrqr djus esa foyac dks ekQ djus ds fy, i;kZIr dkj.k gksxkA , vkb vkj 2006 ,l lh 396] , vkb vkj 2007 ,l lh 2571 rFkk , vkb vkj 2008 ,l lh 2099 vuqlfjrA ¼iSjk 14½
1. This first appeal has been preferred by the defendant against the judgment and decree dated 23.12.2005 passed by the Court of First ADJ Vidisha in Civil Suit No.46-N2005.
2. Short facts relevant for the purpose of this appeal are that the plaintiff respondent No.1 instituted a suit for specific performance on the basis of alleged agreement of sale dated 25.6.2001 for consideration of Rs.70,000/ in respect of agricultural land in area 1.027 hectare comprised in survey No.335/2 situated in village Sanoti, Tahsil and District Vidisha. According to the plaintiff, a sum of Rs.32,000/- was paid as part of consideration and agreement of sale was reduced into writing duly executed by defendant appellant in his favour. Sale-deed was to be executed up-to 25.5.2002 after receiving balance consideration. This having not been done, a suit was instituted on 28.3.2005.
3. Defendant-appellant on giving apparance on 26.4.200.5 sought time for engaging a lawyer. Case was adjourned to 12.5.2005 for filing written statement. However, the Presiding Judge was transferred in the meantime, consequently, the Court was vacant on 12.5.2005 and 25.6.2005. On 11.7.2005, the case was transferred to the Court of First ADJ Vidisha. However, Presiding Judge being on leave, the case was adjourned to 14.7.2005 and thereafter to 17.8.2005.
4. On 17.8.2005, defendant-appellant sought time to submit written statement. This was denied since period of 90 days had already elapsed by that time and accordingly, right to submit written statement was closed. Order sheet dated 17.8.2005 of the trial Court reveals that on the same' day, an application was submitted by the defendant under section 151 of CPC with a prayer that the plaintiff may be directed to provide/supply copies of the documents relied upon by him and an opportunity to submit written statement may be granted. Pursuant thereto, copies of the documents were supplied by the plaintiff to the defendant-appellant on 5.9.2005. Learned trial Judge on 19.9.2005 observed that the defendant appellant did not take any objecion about non-receipt of documents on the earlier dates of hearing and did not submit written statement within 90 days from the date of appearance. Thus, it was found that the right to submit written statement was rightly closed. Accordingly, application under section 151 CPC was dismissed on 19.9.2005. The suit proceeded without allowing the defendant-appellant to submit the written statement.
Learned trial Judge after recording the evidence of the parties, granted decree for specific performance in favour of the plaintiff vide the impugned judgment and decree. Aggrieved by the same, present appeal has been preferred.
5. Shri D.R. Rahul, learned counsel for the appellant made his submissions, whereas no one appeared for the respondents despite service.
6. It is contended by the learned counsel for the appellant that the right to submit written statement has been illegally closed, which caused a gross prejudice resulting into manifest injustice.
7. Considered the submissions and perused the record.
8. It is true that the learned trial Judge allowed cross-examination and further allowed the defendant-appellant to adduce evidence. From the evidence on record it is revealed that the defence of the defendant-appellant was that his wife Kunwar Bai was suffering from blood cancer and money was needed by him for her treatment A sum of Rs.23 ,000/-was obtained by him from the plaintiff as loan on interest @ 3% p.m. on 25.6.2001.
For the transaction of loan, he had brought a stamp of Rs.50/-, which was got signed from him in blank form. Further defence from the evidence on record seems to be that the defendant-appellant had repaid Rs.16,500/- in April 2002 after withdrawing it from the bank account of his younger brother. Further sum of Rs.15,400/- was allegedly paid in Baisakh 2002 after sale of 11 qtl. of masoor at the rate of Rs.1,400/- per qtl.
9. From the aforesaid, it is
