MEHAR CHAND Vs. RATTAN LAL & ANR.

JUDGEMENT

(1.) Petitioner seeks quashment of order dated 26.10.2013 passed by 2nd Additional Munsiff Jammu in suit titled Mehar Chand Vs. Rattan Lal & anr. by virtue whereof respondent No. 1 was permitted to file written statement subject to imposition of costs. The impugned order is alleged to be perverse resulting in failure of justice.

(2.) Facts leading to passing of the impugned order may briefly be noticed. Petitioner filed suit for declaration before Trial Court claiming to be owner in possession of M/s Rattan wires-an industrial unit established on a plot of land measuring 02 kanals underlying Khasra No. 517/2 Khata No. 280 min and Khewat No. 105 min situated at Gangyal Tehsil Jammu along with structure consisting of a hall, four rooms, godowns, office and along with machinery and moveable assets of the premises. He also sought perpetual prohibitory injunction against respondents from interfering, encroaching upon or alienating the subject matter of suit or dispossessing the petitioner. Respondent No. 1 entered appearance before Trial Court on 26.08.2010. He did not file written statement within thirty days of service of summons upon him. Extension of time was sought even after expiry of the extended period of 90 days. On 04.02.2011 respondent No. 1 filed yet another application for extension of time to file the written statement without seeking condonation of delay. Petitioner's case is that he filed objections to the said application and the Trial Court passed the impugned order wrongly imputing it to petitioner that he had not filed objections to the said application. It is contended that the impugned order was passed without screening the record causing patent illegality resulting in failure of justice.

(3.) Respondent No. 1 has contested the petition on the ground that he appeared before the Trial Court through his Attorney on 27.10.2010 and no on 26.08.2010 as claimed by the petitioner. The case was adjourned from time to time as service of respondent No. 2 had not been effected. On 04.02.2011 respondent No. 1 filed application under Sections 148/151 of Civil Procedure Code seeking extension of time for filing written statement. Petitioner filed objections to the same. Meanwhile Presiding Officer of the Court was transferred and a new Presiding Officer took over. The matter was argued and the application came to be decided on 23.07.2012. It is further pleaded that learned counsel for respondent No. 1 was not present on that date though his presence has been recorded in the order. Respondent No. 1 came to know of the order subsequently and moved an application on 02.01.2013 under Sections 148/151 of Civil Procedure Code for extension of time to file his written statement. Objections were filed by the petitioner after availing adjournments. Finally the application was decided in terms of the impugned order dated 26.10.2013. It is further pleaded that respondent No. 1 has complied with the impugned order and filed his written statement and also deposited the costs.