ORDER

This misc. petition has been preferred by the petitioners (LRs of original plaintiff-Ramlautan Shukla) challenging the order dtd. 31.08.2018 passed by Second Additional Judge to the Court of First Civil Judge Class-I, Rewa in civil suit No.34-A/2016 whereby petitioners/plaintiffs' application under Section 151 CPC for exclusion of written statement, has been dismissed.

2. Learned counsel for the petitioners/plaintiffs submits that in the suit simplicitor for permanent injunction filed by original plaintiff (Ramlautan Shukla), the defendants were served but did not appear, therefore, trial court proceeded exparte against them and recorded exparte evidence, but ultimately even in absence of the defendants, the suit was dismissed on 05.02.2004 and upon filing appeal by the plaintiff, and after allowing applications u/o 41 Rule 27 CPC filed by both the parties, the matter was remanded by first appellate court vide judgment and decree dtd. 11.05.2005 to trial court for decision of civil suit afresh after giving due opportunity of adducing evidence to the parties. Learned counsel submits that after remand defendant 1-Indrajeet had died and his legal heirs defendant 1(a)-Dashomati and defendant 1(b)-Surendra Prasad were substituted. However, without making prayer for setting aside the exparty order, defendant 1(b)-Surendra Prasad and defendants 3&4 filed written statement on 28.09.2011 which was taken on record by trial court on 05.07.2012. Leaned counsel submits that as the defendants were proceeded exparte in the civil suit, therefore, no written statement could have been taken on record and as such the application u/s 151 CPC filed by plaintiffs on 25.07.2012 ought to have been allowed directing exclusion of the written statement from the record. With the aforesaid submissions he prays for allowing the misc.petition. In support of his submissions, learned counsel placed reliance on a decision of Supreme Court in the case of Jagdish Chander Chatterjee and ors. vs. Shri Sri Kishan and anr. (1972) 2 SCC 461. 3. Shri Shiv Kumar Dubey, learned counsel for respondents 2, 5 & 6 and Shri Mukund Agrawal, Government Advocate for respondent 7/State support the impugned order and pray for dismissal of misc. petition. 4. Heard learned counsel for the parties and perused the record. 5. In the present case the defendants were proceeded exparte before trial court and even in absence of the defendants, suit was dismissed on 05.02.2004 and upon filing appeal by plaintiff- Ramlautan (now dead by LRs) the defendants appeared and in pending civil appeal both the parties filed applications under Order 41 Rule 27 CPC. After taking into consideration rival contentions of the parties, first appellate court vide judgment and decree dtd.11.05.2005 allowed both the applications and remanded the matter to trial court for decision of civil suit afresh after giving due opportunity of adducing evidence to the parties and to decide the issues afresh.

6 . Thereafter defendant 1-Indrajeet died and his LRs namely Mst. Dashomati and Surendra Prasad were substituted in place of defendant 1- Indrajeet. Then written statement was filed by one of the LRs i.e. defendant 1(b) and defendants 3 & 4 which was taken on record and for exclusion of such written statement, an application under Section 151 CPC dtd.25.07.2012 was filed which has been dismissed by the impugned order. Learned counsel submitted that in the light of provisions of Order 22 Rule 4(2) CPC the defendants 1(a)&1(b) have no right to file the written statement because their father was proceeded exparte before trial court and similarly the defendants 3-4 were also proceeded exparte and they never prayed for setting aside exparte proceedings, hence the clock can not be reverted back.

7. Perusal of judgment and decree of remand dtd.11.05.2005 shows that first appellate court has allowed applications under Order 41 Rule 27 CPC filed by both the parties and directed to decide the issues after giving d