Waiver of statutory rights under mandatory provisions can occur, influencing court procedures.

1. The petitioner has filed the instant petition under Art.227 of the Constitution challenging orders dated 28.05.2022 and 31.10.2022 passed by the learned Sub Judge (Municipal Magistrate, Jammu ('trial Court' for short) whereby the written statements filed by the respondents have been taken on record.

2. Heard and considered.

3. It appears that the petitioner / plaintiff has filed a suit seeking a declaration that sale deeds dated 31.01.2009 and 25.02.2009 executed by wife of respondent No.1 / defendant No.1 in favour of respondent No.2 / defendant No.2 in respect of certain lands situated at village Mehmoodpur, Tehsil Bishnah are, void and ineffective. A further declaration that order No. TB / OQ / 2021-22/317-19 dated 16.07.2021 passed by Tehsildar, Bishnah is and void, has also been sought. The petitioner / plaintiff has further sought a permanent prohibitory injunction restraining the respondents / defendants from interfering in the suit land.

4. The record of the trial Court reveals that the suit was presented on 18.09.2021 and summons were directed to be issued to the respondents / defendants on the said date. It seems that a caveat petition was filed by the counsel on behalf of respondent / defendant No.2. Since, the counsel for defendant No.2 was out of station, as such, notice could not be served upon him. The learned trial Court vide order dated 24.09.2021 passed an interim order directing the parties to maintain status quo on spot. Minutes of the proceedings of the trial Court reveal that on 11.11.2021, Advocate Salil Gupta appeared on behalf of defendant No.2 and sought time to file written statement and on 16.12.2021, Advocate Kamal Saini filed a Vakaltanama on behalf of defendant No.2 and sought time to file written statement, however, no written statement was filed by defendant No.2.

5. On 12.05.2022, the defendants were given last opportunity to file the written statement. On 28.05.2022, defendant No.1 filed his written statement and the same was taken on record. However, defendant No.2 did not file any written statement. Minutes of the proceedings further show that on 30.09.2022 counsel for defendant No.2 filed written statement, however, an objection was raised by the counsel for the petitioner / plaintiff that the same is time barred and cannot be taken on record. The case was adjourned to 31.10.2022 for advancing arguments on this issue.

6. On 31.10.2022, upon a concession made by learned counsel for the petitioner / plaintiff, written statement filed by defendant No.2 was taken on record subject to payment of costs of Rs.2000/- and the case was adjourned to 09.01.2023. On 09.01.2023, defendant No.2 was not present and the case was adjourned to 24.02.2023, on which date, the learned Presiding Officer was not available. On 24.03.2023, counsel for defendant No.2 offered to pay costs, but the counsel for the petitioner / plaintiff refused to accept the same and submitted that he has challenged order dated 31.10.2022 before the High Court.

7. The petitioner / plaintiff has challenged the impugned orders dated 28.05.2022 and 31.10.2022 passed by the learned trial Court on the ground that the written statements have been filed by both the defendants after the expiry of 120 days of their service of summons, therefore, in terms of O.8 R.1 of CPC, they have forfeited their right to file the written statement. Thus, it was not open to the trial Court to allow the written statements to be taken on record. It has been contended that the provisions contained in O.8 R.1 of CPC, as applicable to the Union Territory of Jammu and Kashmir,