- (1.) Heard Id. Sr. Counsel Mr. P. M. Thakkar for Id. Counsel Mr. Ravindra Shah for the petitioner. Invoking jurisdiction of this Court under Article 227 of the Constitution of India, the, petitioner has prayed to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 19-7-2005 Annex. A to the petition whereby the 1d. 5th Jt. Civil Judge (S. D.), Bhuj-Kutch rejected the application exh. 35 in Special Civil Suit No. 24/2004 and to allow application exh. 35 directing the trial Court to take the written statement of the petitioner defendant company on record. 2(i) The petitioner is a Public Limited Company and defendant in a Special Civil Suit No. 24/2004. As the defendant company prayed vide application Exh. 35 that it may be permitted to file written statement in the suit as it could not file written statement in time granted. The day on which the application Exh. 35 was tendered, written statement was also kept along with the application praying permission. (ii) In the application, the petitioner has contended that the defendant is a big company and the officers of the company conversant with the facts have to go out of district Kutch frequently and, therefore, the company could not submit its written statement within time. Who should sign the written statement was also a question. The application Exh. 35 was tendered in the Court on 5-6-2004 and the advocate appearing for the plaintiff objected and subjected by making an endorsement in the margin of the application Exh. 35 that the plaintiff should be heard before according permission to file written statement. Ultimately, the 1d. Civil Judge after hearing the advocates appearing for the parties, rejected the application Exh. 35 vide Impugned order dated 19-7-2005. (iii) It is relevant to note that the day on which application Exh. 35 was filed, one another application Exh. 37 under O. 39, R. 4 of Civil Procedure Code (CPC for short) was also submitted by the petitioner defendant praying that in absence of written statement from the defendant side, interim prohibitory orders have been passed by the Court issuing directions to the parties to maintain status quo on 7-5-2004 and therefore that order may be modified in exercise of the powers vested with the Court under O. 39, R. 4 of CPC. The suit and the application praying interim orders are of 16-3-2004, but because of caveat filed by the defendant company, no ex-parte orders were passed, but after several adjournments and on hearing the parties, the ld. Civil Judge, allowed the application Exh. 5 passing interim prohibitory orders against the petitioner defendant from entering, transgressing or encroaching upon the suit land so also against causing any obstructions in peaceful enjoyment of the property by the plaintiff respondent. The defendant company was also prohibited from putting up any construction etc. (iv) On 4-5-2004, a pursis was filed by the petitioner defendant that it would maintain status quo in respect of the suit property in question. Obviously, in absence of any formal reply-written statement, ld. Civil Judge proceeded with the application and ultimately passed the order below application exh. 5. (v) Before the application Exh. 35 praying permission to file written statement, one application Exh. 31 was filed by the plaintiff to take action or to pass orders under O. 39, R. 2(a) of CPC stating that defendant company is violating the interim prohibitory orders on 1-6-2004. When the application as well as application under O. 39, R. 4 were filed on account of injunctory order dated 7-5-2004 passed against the petitioner-defendant earlier being operative, it was challenged by way of filing writ petition under Article 226/227 of the Constitution of India before this Court vide Spl. Civil Application No. 13864/2004. However, after hearing the parties, this Court (Coram : A. L. Dave, J.), dismissed the petition holding that:- "in light of the factual scenario and considering that the order impugned is of a interlocutory nature, this Court is not inclined to exercise its powers under Article 227 of the Constitution of India. Petition must fail and stands rejected. Notice discharged. No costs." (vi) The above order passed by this Court was assailed before the Apex Court under Civil Appellate Jurisdiction by preferring Special Leave Petition No. 7369/2005. The Apex Court, considering the factual contingency and the nature of grievance placed by the petitioner defendant, was pleased to pass the following order on 18-4-2005 :- "Leave granted. The complaint of the applicant is that his application was filed under Order 39, Rule 4 of the CPC for modification of an earlier interim order because of certain subsequent events was incorrectly rejected by the High Court. The learned counsel for the respondent submits that there is an application filed by the respondent under Order 39, Rule 2(a) which is pending considering before the trial Court. Therefore, if the matter is to he remanded, there should be a direction that both the application viz. I. A. Under Order 39, Rule 4, CPC filed by the petitioner and I. A. Under Order 39, Rule 2(a) filed by the respondent be heard and disposed of together at an early date. In view of the above submissions, in the interest of justice, we allow this appeal, set aside the impugned order of the High Court and direct the trial Court to dispose of the application filed under Order 39, Rule 4 as also the application filed by the respondent Order 39, Rule 2 (a) on merit as earlier as possible, preferably within two months."
(2.) The Apex Court quashed the order and directed that both the applications viz. application under O. 39, R. 4 filed by the petitioner defendant and the application under O. 39. R. 2(a) filed by the respondent plaintiff be heard together on merits and as early as possible and preferably within two months. In compliance with the order passed by the Apex Court, the ld. Civil Judge rejected the application under O. 39, R. 4 filed by the petitioner defendant, the day on which it refused to permit the defendant to file written statement. (Emphasis, being relevant for the present order, supplied). 4(a). Earlier when the suit was filed and this Court and the Apex Court were approached by the present petitioner the company was contesting the litigation with its earlier name i.e. M/s. Saw Pipe Ltd. The company adopted new name in between and therefore, the present petition is preferred by the company with the new name i.e. Jindal Saw Ltd. (b) Ld. Sr. Counsel Mr. P. M. Thakkar for the petitioner defendant has taken this Court through the facts of the case of the defendant and other details emerging from the documents attached to the petition. It is submitted that the application Exh. 35 ought to have been allowed first and after considering the written statement and nature of resistance placed by the petitioner-defendant in the suit, application under O. 39, R. 4 preferred by the petitioner defendant should have been decided. The ld. Civil Judge has grossly failed in appreciating the submissions made for allowing the application Exh. 35 requesting to take written statement on record.
(3.) I have carefully gone through the grounds mentioned in para 3 of the petition. During the course of oral arguments, ld. Sr. Counsel Mr. Thakkar pointed out that the ld. Civil Judge has failed in appreciating the purpose of introducing amended Rule 1 of Order 8 of CPC and its ultimate object. It is pointed out that the statements, object and reasons of the Code of Civil Procedure (Amendment) Act, 2002 states that :-- "Recently, the Code of Civil Procedure (Amendment) Act, 1999 was enacted by parliament with a view to cutting short the delays at various levels. After its enactment a large number of representations were received both for and against its enforcement. The Law Commission of India in its 163rd Report also dealt with the Code of Civil Procedure (Amendment) Bill, 1997 which was enacted later on as the Code of Civil Procedure (Amendment) Act, 1999.;