Bela M. Trivedi, J. - (1.) HEARD learned counsel for the petitioners. None is present for the respondents though the matter has been called out twice. Earlier on 08.05.2012, the Court had passed the following order: None is present for the respondents. Learned counsel for the petitioner is prepared to argue the case, but I do not feel inclined to hear the arguments in the absence of the counsel for the respondents. It is made clear that in case, the learned counsel for the respondents does not appear on the next date of hearing, the writ petition shall be decided after hearing the learned counsel for the petitioner on merits, on the next date of hearing. List on 14.05.2012. In view of the said order, the matter is heard today finally in absence of learned counsel for the respondents.
(2.) BY way of present petition, the petitioners (original defendants) have challenged the orders dt. 25.08.2003 and 05.04.2006 passed by the learned Addl. District Judge (Fast Track) No. 2, Ajmer, Camp Beawar (hereinafter referred to as "the trial Court") The short facts giving rise to the present petition are that initially the respondent No. 2 (original plaintiff) had filed the suit against Shri Tulsi Ram, father of the petitioner No. 1 and respondents No. 3 to 6 and against the petitioner No. 1 (original defendant) for the recovery of Rs. 97,400/ -with interest before the trial Court. During the pendency of the suit, the said Tulsi Ram expired and therefore the petitioner No. 2 and respondents No. 3 to 6 were substituted as the legal representatives of said Tulsi Ram. In the said suit, the trial Court issued summons vide order dt. 02.12.2002 requiring the appearance of the defendants on 25.08.2003. The petitioners appearing through their counsel on 25.08.2003 submitted their written statement, however, the Court did not allow the written statement to be taken on record and the written statement was kept out of record. The petitioners thereafter moved an application under Order VII Rule 11 of CPC praying for the rejection of the plaint stating interalia that the petitioner No. 2 (defendant -1) was mentally disturbed since 1996 itself and was lunatic and therefore was not competent to enter into any agreement as alleged by the plaintiff and therefor the suit was barred under the provisions of Indian Contract Act. The said application was rejected by the trial Court vide order dt. 05.04.2006. Being aggrieved of the said two orders i.e. the order dt. 25.08.2003 and 05.04.2006, the petitioners have invoked extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
(3.) IT has been submitted by learned counsel Mr. Rajendra Prasad for the petitioners that vide impugned order dt. 05.04.2006, the trial Court has observed that it would be the matter of evidence that the defendant No. 1 was lunatic or not. In the same order, it has also been observed that since the written statement of the defendants has been taken out of record, there was no need to frame any issue as to whether the defendant No. 1 was lunatic or not. According to Mr. Prasad, gross injustice would be caused to the petitioners if the written statement of the petitioners is not permitted to be taken on record. He also submitted that the impugned order being illegal deserves to be set aside.;