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AFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on: 13.10.2022 Order Delivered on: 18.11.2022 WP227 No. 147 of 2020
1. Shakuntala Devi W/o Late Mohan Aged About 59 Years R/o Company Bazar , Nagar , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
2. Sanjay Gupta S/o Late Mohan Aged About 39 Years R/o Company Bazar , Nagar , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
3. Rakesh Gupta S/o Late Mohan Aged About 35 Years R/o Company Bazar , Nagar , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
4. Rajesh Gupta S/o Late Mohan Aged About 29 Years R/o Company Bazar , Nagar , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh. ---- Petitioners Versus
1. (Deleted) Smt. Yashoda As Per Hon'ble Court Order Dated 23-
08-2022.
2. Girja Prasad Gupta S/o Late Ramdev Aged About 60 Years R/o Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
3. Smt. Malti Gupta D/o Late Sudama Prasad Gupta Aged About
50 Years R/o Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
4. Gagan Gupta S/o Late Sudama Prasad Gupta Aged About 28 Years R/o Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
5. Megha Gupta D/o Late Sudama Prasad Gupta Aged About 25 Years R/o Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
6. Akash Gupta S/o Late Sudama Prasad Gupta Aged About 22 Years R/o Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
7. Raju Gupta S/o Late Ramdey Aged About 40 Years R/o Sadar Road, Ambikapur , Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
8. Dhaneshwari Devi W/o Late Ramkewal Aged About 75 Years R/
o Mahamaya Road, Ambikapur , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
9. Rajendra Keshri S/o Late Ramkewal Aged About 60 Years R/o Mahamaya Road, Ambikapur , Police Station and Tehsil Ambikapur , District Surguja Chhattisgarh.
10.Ashok Keshari S/o Late Ramkewal Aged About 57 Years R/o Mahamaya Road, Ambikapur , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
11.Radheshyam Keshari S/o Late Ramkewal Aged About 54 Years R/o Mahamaya Road, Ambikapur , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
12.Kapil S/o Late Jeetu Aged About 55 Years R/o Mahamaya Chowk , Near Abhinav Talkies, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
13.Vidya D/o Late Jeetu Aged About 52 Years R/o Mahamaya Chowk , Near Abhinav Talkies, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
14.Prabhudayal S/o Late Jeetu Aged About 45 Years R/o Mahamaya Chowk , Near Abhinav Talkies, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
15.Kishore S/o Late Jeetu Aged About 38 Years R/o Mahamaya Chowk , Near Abhinav Talkies, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
16.Rajesh S/o Late Surajdev Aged About 42 Years R/o Kadambi Road, Sadar Road, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
17.Ambikesh S/o Late Surajdev Aged About 38 Years R/o Kadambi Road, Sadar Road, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
18.Durgesh S/o Late Surajdev Aged About 35 Years R/o Kadambi Road, Sadar Road, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
19.Savitri Devi W/o Late Chandradev Aged About 67 Years R/o Kadambi Road, Sadar Road, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
20.Sushil Kumar Gupta S/o Late Chandradev Aged About 47 Years R/o Kadambi Road, Sadar Road, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
21.Anil Kumar Gupta S/o Late Chandradev Aged About 44 Years R/
o Kadambi Road, Sadar Road, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
22.Siddhanshu S/o Late Gourishankar Aged About 25 Years R/o Bramhroad, Nagar , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
23.Himanshu S/o Late Gourishankar Aged About 22 Years R/o Bramhroad, Nagar , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
24.Damyanti Devi W/o Late Jaishankar Aged About 50 Years R/o Bramhroad, Nagar , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
25.Avinash Gupta S/o Late Jaishankar Aged About 28 Years R/o Bramhroad, Nagar , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
26.(Deleted) Smt. Kamoda Devi, As Per Hon'ble Court Order Dated
23-08-2022.
27.Vinod S/o Late Laxmi Aged About 40 Years R/o Company Bazar , Ambikapur , District Surguja Chhattisgarh.
28.Vijay S/o Late Jamuna Aged About 55 Years R/o Company Bazar , Ambikapur , District Surguja Chhattisgarh.
29.Arjun S/o Late Jamuna Aged About 48 Years R/o Company Bazar , Ambikapur , District Surguja Chhattisgarh.
30.Pankaj S/o Late Kamlesh Aged About 23 Years R/o Company Bazar , Ambikapur , District Surguja Chhattisgarh.
31.Deepak S/o Late Kamlesh Aged About 19 Years R/o Company Bazar , Ambikapur , District Surguja Chhattisgarh.
32.Smt. Urmila Devi W/o Late Ajay Aged About 60 Years R/o Sadar Road , Nagar, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
33.Vinay Kumar Keshri (Died), Through Legal Heir As Per Hon'ble Court Order Dated 23-08-2022.
33.1 - (A) Deepa Keshri W/o Late Vinay Kumar Keshri Aged About 39 Years
34.Vinit Kumar Keshari S/o Late Ajay Aged About 26 Years R/o Sadar Road , Nagar, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
35.Virendra S/o Late Sheetal Aged About 54 Years R/o Sadar Road , Nagar, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
36.Sanchu S/o Late Sheetal Aged About 50 Years R/o Sadar Road , Nagar, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
37.Bijendra Gupta S/o Late Munshi Prasad Aged About 45 Years R/
o Old Bus Stand , Nagar Police Station And Tahsil Ambikapur , District Surguja Chhattisgarh.
38.Triveni S/o Ramnath Aged About 40 Years R/o Village Batwahi, R.I. Circle Lundra , Tehsil Lundra, District Surguja Chhattisgarh.
39.Ravi S/o Ramnath Aged About 38 Years R/o Village Batwahi, R.I. Circle Lundra , Tehsil Lundra, District Surguja Chhattisgarh.
40.Munni Devi W/o Late Kamlesh Aged About 45 Years R/o Company Bazar , Nagar , Ambikapur , District Surguja Chhattisgarh.
41.Prabha Devi W/o Late Surajdev Aged About 65 Years R/o Kadambi Road, Sadar Road, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
42.Shail Devi W/o Late Gourishankar Aged About 50 Years R/o Bramhroad, Nagar, Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
43.Surajpur Devi W/o Late Jeetu Aged About 80 Years R/o Mahamaya Chowk , Ambikapur , District Surguja Chhattisgarh.
44.Abbas Khan S/o Abdul Hakim Khan Aged About 52 Years R/o Mominpura, Ambikapur , Police Station And Tehsil Ambikapur , District Surguja Chhattisgarh.
45.Mohammad Hamid S/o Jahur Ali Aged About 36 Years R/o Village Batwahi, Police Station And Tehsil Lundra , District Surguja Chhattisgarh.
46.State of Chhattisgarh Through Collector , Surguja , District Surguja Chhattisgarh. ---- Respondents For Petitioners : Shri Manoj Paranjpe, Advocate with Shri Bharat Sharma, Advocate For Respondent Nos.7, 9 to 12, 14 to 25, 32 to 34 & 41 to 43 : Shri A. K. Prasad, Advocate with Shri Rishikant Mahobia, Advocate For State/Respondent No.46 : Shri Lalit Jangde, Dy. G. A.
Hon'ble Shri Justice Rakesh Mohan Pandey
['MANOJ PARANJPE', '', 'VAIBHAV A GOVERDHAN', 'Prasoon Agrawal', 'SHUBHANK TIWARI', 'VIVEK MISHRA', 'Anurag Singh', 'ANSHUL TIWARI', 'Bharat Sharma', 'A K PRASAD', 'RISHIKANT MAHOBIAAMAN KESHARWANI']
CAV ORDER
1) This petition is filed by legal heirs of defendant No.15 challenging herein the legality and propriety of the order dated 22.01.2020, passed in Civil Suit No. 76- A/13 by IInd Civil Judge Class-II, Ambikapur, Surguja, whereby application filed by the petitioners under Order 22 Rule 4(2) read with section 151 of the CPC for taking written statement on record, has been dismissed.
2) The case in nutshell is that, original plaintiff namely Ramdev filed a Civil Suit for declaration of title, partition and permanent injunction. The plaintiff and defendants are legal heirs of late Ishwar and Raghuwar Sahu. The plaintiff pleaded that the property detailed in Schedule-A annexed with the plaint situated at Village Batwahi, Tahsil- Lundra, District- Sarguja (CG) was recorded in name of Raghuvir Sahu and late Ishwar Sahu during Sarguja State Settlement and later on, it was partitioned between them. Revenue records were also corrected. It is also pleaded that late Ishwar Sahu during his lifetime, partitioned his share mentioned in Schedule-B & C appended with the plaint amongst his sons. The plaintiff further pleaded that the land bearing Survey No. 542/2, 1438/2, 1438/5 fell in his share. The defendant Nos.1, 14 and 16 by playing fraud, had executed the sale deed in favour of defendant Nos. 22, 23 and 24 on 19.09.2008 and they were interfering in the peaceful possession of the plaintiff, therefore, he filed suit for 1/4th share of the property described in Scheduled-C, and, declaration was also sought to the effect that the sale deed executed in favour of the defendant No. 22, 23 and 24 is null and void up to the share of the plaintiff but defendant No. 2, 3, 4, 5, 6, 7, 8, 10, 12, 15, 18, 20 and 21 filed their written statements and denied the averments made in the plaint. Counter claim was also filed by them seeking therein 1/4th share of the property described in Schedule- C, 1/4th share of the property described in Schedule- B, declaration of the sale deed dated 10.09.2008 as null and void, and, sale deeds executed pertaining to plot numbers 1438/2, 1438/3 and 1438/5 are null and void up to their share and for permanent injunction.
3) During the pendency of Civil Suit, the defendant No. 15 namely Mohan died on 16.11.2015 and his legal heirs i.e. the petitioners herein were brought on record. They were proceeded ex-parte on 26.10.2016 and thereafter an application under Order 9 Rule 7 of the CPC was moved and the same was allowed by the learned trial court vide order dated 20.12.2019.
4) The petitioners/legal heirs of defendant No.15 filed their written statements along with an application under Order 22 Rule 4(2) read with Section 151 of the CPC for taking written statement on record on behalf of the legal heirs of the defendant No. 15. Oral objection was raised by the plaintiff on application moved by the petitioners. The learned trial court vide order dated 22.01.2020 rejected the said application on the ground that the legal heirs of the defendant No.15 have pleaded contrary to the pleading made by the original defendant which is not permissible.
5) Learned counsel for the petitioners submits that the order passed by the learned trial court is erroneous and contrary to law. He further submits that the learned trial court ought to have appreciated the fact that not taking of the written statement on record would cause great loss to the petitioners herein as no written statement was filed by the original defendant No.15. He also submits that the time limit prescribed under Order 8 Rule 1 of the CPC is directory and not mandatory and thus the Court may in its discretion allow the party to file the written statement beyond the period of 90 days, if sufficient reason is assigned. He has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Salem Advocate Bar Association (II) Vs. Union of India reported in 2005 (6) SCC 344 and Abdul Razak (dead) through Lrs. and Others Vs. Mangesh Rajaram Wagle and Other
