RAJRANI SAXENA Vs. YADRAM CHAURASIA

JUDGEMENT

(1.) THIS is a revision by the legal representatives of defendant No. 2 against the order of the Fourth Civil Judge, Class II, Gwalior in Civil Suit No. 532 -A/72, dated 6 -4 -1973 whereby he has rejected the I.A. No. 8 filed by defendant No. 2 for permission to file a written statement. The revision has arisen in the following manner. The plaintiffs -non -applicants Nos. 1 to 4 herein have filed a suit against the non -applicant No. 5 herein (defendant No. 1 in the suit) and against one Kripa Shanker who was defendant No. 2 -now dead. The present applicants are his legal representatives. The defendant No. 2 had entered appearance even when the summons of the suit was not served on him through Shri R.D. Jain, Advocate on 2 -3 -1973 on his behalf stated that day that defendant No. 2 did not want to file written statement, whereupon the trial Court closed the right of defendant No. 2 to file written statement. The relevant part of the order -sheet dated 2 -3 -1973 is as under: - -

(2.) ON this date, the trial Court also framed a preliminary issue. Thereafter, on 6 -4 -1973, an application on behalf of defendant No. 2, I.A. No. 8 along with the written statement was filed for permission to file the written statement on the ground that he did not possess copy of the plaint and he was told by defendant No. 1 that no relief was claimed against him; therefore, he had declined to file the written statement, but later on he knew that there was a relief claimed against him also. The trial Court rejected the application vide the impugned order which is contained in paragraph 4 of the order. The trial Court has rested its conclusions on two grounds, namely; first, that the contention of defendant No. 2 that for want of a copy of the plaint, he did not know that there was a relief claimed against him also is not genuine inasmuch as there was a common counsel for defendants No. 1 and No. 2 and through that counsel, the defendant No. 2 must have known the contents of the plaint and second, the failure of defendant No. 2 to file written statement was an admission of the claim of the plaintiff and as such permitting defendant No. 2 now to file written statement would be depriving the plaintiffs of a right that accrued to them on account of this admission of defendant No. 2. At this stage, it would be pertinent to state that except the framing of the preliminary issue relating to the valuation of the suit for the purpose of Court fee, the case has not proceeded further. The decision of this revision involves two questions: - - (i) Whether the effect of the declaration by defendant No. 2 that he did not want to file written statement is that he had admitted the claim of the plaintiffs and the consequence of permitting him to file the written statement would be to allow him to withdraw that admission, the permission is rightly rejected and (ii) Whether the aforesaid ground for permission is genuine. I would take up the discussion of the points ad seriatim.

(3.) R . 1 Written Statement. - -The defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. According to this, there is a discretion given to the defendant to file a written statement and it can be exercised at any time before the first hearing or on some date fixed by the Court. The language of this provision is clear and unambiguous to which no other meaning than what I have stated herein above can be assigned. Now, the first hearing of a suit means the date on which the Court goes into the pleadings in order to understand the contentions of the parties, i.e. the date for framing issues. It is true that in the instant case on 2 -3 -1973, i.e. before the defendant No. 2 filed I.A. No. 8 which is presently under consideration, a preliminary issue was framed and thus this application was made after the date of first hearing and, therefore, the defendant could not as of a right without the permission of the Court file a written statement. Consequently, the question arises whether the discretion exercised by the trial Court in refusing permission to defendant No. 2 to file a written statement is judicious or arbitrary calling for interference by this Court in revision. To reiterate, this is an admitted position that except framing of the preliminary issue, the case has not proceeded any further. The defendant No. 1 has filed a written statement controverting the allegations of the plaintiffs, the question of valuation of the suit for purposes of court -fee is the subject -matter of issue No. 1 which being decided either way except in the event the plaint is rejected for want of payment of deficit court -fee the Court has to proceed with the trial in view of the fact that the plaint allegations have been controverted by defendant No. 1. Thus, in any case, the plaintiffs have to lead evidence to prove their case. In this backdrop, it can well be said that no prejudice as such is going to be caused to the plaintiffs by permitting defendant No. 2 to file a written statement except that they would be required to lead the evidence bearing in mind the pleas of defendant No. 2 also. This is not such a prejudice which would result in manifest injustice to the plaintiffs. At best, it is an additional burden to the plaintiffs which can well be compensated by costs. Cost is such a penacea which heals up every sore in litigation. It is trite law that laws of procedure are designed to further the ends of justice and the Courts should act and interpret them with that end in view. Justice should not be lost in technicalities. No one should be condemned unheard. He should be given full scope to plead and put his case. of course, where there are clearly defined exceptions, effect has to be given thereto. But, by and large the Court must act bearing in mind that laws of procedure are the handmaid of justice. This apart, the cause assigned explaining the declaration by defendant No. 2 on 2 -3 -1973 for not filing any written statement cannot be thrown off as preposterous. The reasonings given by the trial Court for holding it to be ingenuine are based on surmises and conjectures. It is not justifiable to impute the knowledge of counsel to his client. This is undisputed fact that the defendant was not supplied a copy of the plaint before this declaration and the possibility of his having made that declaration on a wrong information cannot be eradicated mereby because his counsel was also a counsel for defendant No. 1 who was possessed of a copy of the plaint. There is no material on record to indicate that it was only after due deliberation with his counsel that defendant No. 2 had, under his advice, declared that he did not want to file written statement. In the light of the foregoing discussion, I am of the view that in the circumstances of this case, the Court acted with material irregularity in rejecting defendant No. 2's application I.A. No. 8.