- (1.) NONE is present for the respondent no.3. By way of the instant writ petition, the petitioner-plaintiff has implored to quash and set aside the order dated 23rd September, 2011, whereby the learned Civil Judge (Jr.Div.) Kota, South, treated one reply to be the written statement of defence and directed the respondent-defendant to file the verification of the averments made in the said reply.
(2.) NONE is present for the respondent no.3 despite service of notice upon him, hence, heard the learned counsel for the petitioner and carefully perused the relevant material on record including the impugned order. The brief facts of the case are that the petitioner-plaintiff Mohan lal Sharma filed a suit for declaration and permanent injunction. During the pendency of the suit, the petitioner-plaintiff filed an application on 25th August, 2011, stating that the respondent-defendant no.3 Dhanna lal had not filed the written statement of defence in accordance with the provisions as envisaged under Order 8 of CPC. Albeit, there were no pleadings on record and yet the court inadvertently adjourned the case for recording the evidence of the respondent-defendant, whereas in the absence of pleadings, he had no right to produce the evidence, hence, it was prayed to close his evidence. Learned counsel for the petitioner contended that despite there being no pleadings on record, the court treated one reply to be the written statement of defence and directed the respondents-defendants to submit the verification. This order is totally illegal and contrary to the provisions of law, hence, the same deserves to be set aside. Having considered the submissions made by the learned counsel for the petitioner and carefully scanned the impugned order, it is found that the respondent-defendant had filed the reply, albeit, it was not in accordance with the provisions under Order 8 of CPC. The learned trial court observed that the respondent-defendant himself conceded that it was not a written statement of defence as envisaged under Order 8 of CPC, but he had filed the reply on 20th December, 1999 and inadvertently recorded in the reply that it was the reply of temporary injunction application, whereas, the fact was that it was the reply filed by him and on the basis of this reply and the pleadings of the petitioner-plaintiff, the court settled the issues and allowed the respondent-defendant to produce the evidence. The learned trial court also observed that the provisions of Code of Civil Procedure were procedural in nature and merely on account of there being a technical flaw, the respondent-defendant could not be deprived of seeking justice. The learned trial court having kept in mind the object of justice, directed the respondent-defendant to submit the verification of his reply. From a bare perusal of the impugned order, it is noticed that the order passed by the learned trial court is entirely based on the facts of the case and this Court while invoking extra-ordinary jurisdiction is not required to upset the purse finding of fact. It is relevant to note that the scope of Article 227 of the Constitution is very limited. The Hon'ble Apex Court has consistently held in plethora of cases that the extra-ordinary jurisdiction under Article 227 of the Constitution can be invoked by the High Court only when the impugned order is found to be perverse, contrary to material or it results in manifesting injustice. It has also been repeatedly held by the Hon'ble Apex Court that the High Court while exercising extra-ordinary jurisdiction should escape from interfering with the impugned orders of the courts below and such power should be exercised sparingly and not in routine. It is also a settled law that the High Court should be very slow in upsetting the pure finding of facts.
(3.) THE upshot is that the impugned order is found to be just and proper and I do not find any ground to interfere with the same, hence, the writ petition being devoid of any substance deserves to be dismissed. For the reasons stated above, the writ petition fails and the same being bereft of any merit stands dismissed. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands dismissed. ;