IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 143 of 2023 Decided on: 08.09.2023 Pushpa Devi and another …Petitioners Versus Purni Devi. ...Respondent Coram Hon’ble Mr. Justice Ranjan Sh arma, Judge.

Whether approved for reporting? tYes.

For the petitioners : Mr. Arush Matlotia, Advocate. For the respondent : Mr. Pawan Gautam, Advocate.

Ranjan Sharma, Judge (Oral)

The petitioners herein, being the defendants in Civil Suit No. 01 of 2021, titled as Purni Devi vs. Pushpa Devi and another have come up in instant petition Hfiled under Section 227 of the Constitution of India assailing the Order dated 05.01.2023, Annexure P-5, passed by the learned Civil Judge, Court No.2, District Kangra, (H.P.) whereby the application filed by the petitioners under Section 148 CPC for enlargement of time to file written statement was dismissed and the right to file written statement was struck-off.

2. FACTS AND PROCEEDINGS BEFORE THE LEARNED CIVIL JUDGE KANGRA

2(i) Factual matrix is that Smt. Purni Devi, filed a Civil Suit No. 01 of 2021, for damages to the tune of Rs.2,00,000/- (Rupees two lacs only) on account of loss suffered by her due to unlawful acfts of the defendants who had illegally entered into her garden situated in Khasra Nos. 1468 and 1469 in V.P.O Mundla, Teshil Nagrota Bagwan, District Kangra (H.P.), and had cut and destroyed the fruit bearing Kiwi trees. It is averred that plaintiff lodged a complaint on which Gram Panchayat, Mundla vide orders dated 5.8.2021 imposed a fine of Rs.400/- on the defendants. It is in this background, that the plaintiff filed a suit for recovery of damages to the tune of Rs.2,00,000/- from the defendants after modifying the orders passed by Gram Panchayat as the plaintiff had suffered monetary loss, suffered pain and agony due to the acts of the defendants.

2(ii). In Civil Suit, as aforesaid, the learned Court below issued summons to the defendants on 6.9.2021 for 29.11.2021. On service of summons on 12.11.2021, the defendants put in appearance through their counsel Shri Mukesh Kumar on 29.11.2021, on which date the defendants were directed to file written statement on 31.12.2021. The case was listed on 16.03.2022, then on 04.06.2022 and on 22.09.2022 the matter was listed for filing written statement on 21.11 .2022 and on the said date the Presiding Officer was on leave and therefore, the case was put up for Proper Orders for 29.12.2022. Records reveal that on 29.12.2022, defendants filed an application under uSection 148 CPC (i.e. CMA No. 73 of 2023) for enlaorgement of time for filing written statement on the gCround that the defendants had applied for certain documents i.e. copy of Kalandra under Sections 145, 107 and 150 Cr.P.C and copy of the order of mode of partition and stated that these documents are necessary as they go ito the root of the controversy and in absence of these documents the learned counsel could not prepare the written statement. In this background, it was prayed that the application under Section 148 CPC may be allowed and written statement filed alongwith this application may be considered/taken on record. The Court below issued notice on the application and on receipt of reply to this application, the learned Civil Judge, Court No.II, Kangra passed an order on 05.01.2023 (referred to as the Impugned Order), whereby, the application filed by the defendant under Section 148 CPC was dismissed with costs of Rs.500/- and his right to file the written statement was struck-off. The impugned order dat ed 5.1.2023, reads as under:

“This order shall dispose of an application filed under Section 148 CPC for enlargement of time for filing written statement beyond the prescribed period. As per applicant, the written statement could not be filed earlier, as certain documents i.e. Kalandra and copy of mode of partition were not in the possession of the applicants/defendants. Moreover, the counsel of the applicant/defendants was unable to draft or to file the written statement in t