Item No.20

Advance List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT

SRINAGAR

OWP No.1505/2016

MST. SHAHZADA AKHTER

…PETITIONER(S)

Through:

Mr. M. Younis Bhat, Advocate.

Vs.

MST. NOORI AND & ORS

…RESPONDENT(S)

Through:

None.

CORAM:

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

(ORDER)(ORAL)

29.09.2021

1.

Instant petition has been filed under Section 104 of the Constitution

of J&K, which corresponds to Article 227 of the Constitution of India,

whereby petitioner has challenged order dated 24.06.2016 passed by City

Munsiff, Srinagar, in a suit titled Mst. Shahzada Akhter v. Mst. Noori &

Ors.

2.

The facts emerging from the record are that in the year 2010,

petitioner (hereinafter referred to as the plaintiff) had filed a suit for

declaration and injunction against the respondents before the Court of City

Munsiff, Srinagar. The declaration was sought by the petitioner with

regard to land measuring 9 marlas situated at Mouza Batamaloo and the

injunction against the defendants was also sought regarding the same land.

MOHAMMAD ALTAF BHAT

2021.10.05 12:48

I attest to the accuracy and

integrity of this document

2 OWP No.1505/2016

3.

It appears that the defendant No.1/respondent No.1 herein filed

written statement to the said suit during the same year i.e., in the year

2010. The aforesaid defendant also raised a counter claim seeking right of

prior purchase and recovery of possession of the suit land from the

plaintiff.

4.

The suit came to be dismissed in default of appearance of the

plaintiff in terms of order dated 02.11.2013 passed by the trial court.

However, the trial court while dismissing the suit of the plaintiff, posted

the counter claim of defendant No.1 for consideration on 26.12.2013.

5.

It appears that on 09.11.2015, the plaintiff appeared before the trial

court and filed an application seeking permission to contest the counter

claim and to allow her to file written statement to the counter claim. The

said application came to be dismissed by the trial court in terms of

impugned order dated 24.06.2016. While dismissing the application of

plaintiff, the trial court allowed the plaintiff to take part in the proceedings

without a right to cross examine the witnesses of the defendants and

without a right to produce her own witnesses. It is this order which is under

challenge before this Court.

6.

It is contended in the petition that the impugned order passed by the

trial court has resulted in serious miscarriage of justice as the plaintiff has

been debarred from defending the counter claim. It is also contended that

the plaintiff being a parada-nisheen woman, was not aware about the

proceedings of the suit and because the matter between the parties had

been settled, as such, she under a bonafide belief did not pursue her suit.

MOHAMMAD ALTAF BHAT

2021.10.05 12:48

I attest to the accuracy and

integrity of this document

3 OWP No.1505/2016

7.

I have heard learned counsel for the petitioner and perused the

material on record.

8.

As already noted, the suit of the plaintiff was dismissed for default

for appearance of plaintiff on 02.11.2013. The defendant No.1 had filed

a counter claim which came to be listed for further proceedings after the

dismissal of the suit. The written statement along with counter claim was

filed by the defendant No.1 in the year 2010 itself. Till the year 2013,

when the plaintiff stopped appearing in the case, she did not take trouble

to file a written statement to the counter claim of defendant No.1.

9.

Rule 6-G of Order VIII of the Code of Civil Procedure provides that

the rules relating to a written statement by defendant shall apply to written

statement filed in answer to a counter claim. Rule 1 of Order VIII provides

that the defendant has to file written statement of his defence within thirty

days from the date of service of summons on him. Proviso to the said Rule

gives discretion to a Court to extend the a