SANDEEP MEHTA,J. - (1.) Through this writ petition under Article 227 of the Constitution of India, the petitioners being the legal representatives of late Shri Maganlal Nagda and the defendants before the court below, have approached this Court for assailing the order dated 9.2.2018 passed by the learned Additional District Judge No.1, Udaipur in Civil Original Case No.14/2017 whereby, the application filed by the petitioners under Order 8, Rule 1 and Order 22, Rule 4(2) read with Section 151 C.P.C., was dismissed.
(2.) Brief facts relevant and essential for disposal of the writ petition are noted here in below.
(3.) The respondent Shoorveer Singh Choudhary filed a suit against Shri Maganlal and other defendants for specific performance of contract, declaration, injunction and in the alternative, mandatory injunction. It was stated in the plaint that Shri Maganlal sold agricultural land located in the village Girwa to the plaintiff in the year 1997 for a consideration of Rs. 55 lacs, out of which, he received a sum of Rs. 11 lacs at the inception and a further sum of Rs. 90,000/- in cash at a subsequent date. The original agreement was oral and a written agreement was then executed on 27.3.1997. Looking to some dispute in the family, the parties agreed that the sale deed would be registered after settlement of the family dispute. The defendant Maganlal filed a written-statement on 25.3.2006 claiming that the agreement was forged and that he has not received any consideration. He further claimed that his grandson has joined hands with the other defendants and the plaintiffs and got signed some documents without apprising him the consequence thereof. He further claimed that the property in question was not his self-acquired property but was rather ancestral property of Shri Pithaji. He also claimed that in the year 1978, the property had been bequeathed to two sons whose names were entered in the revenue record and that Maganlal did not have physical possession of the property with him. Reference was also made to a family settlement dated 28.7.1993 under which, Dinesh, Karan and Mahesh acquired rights over the land in question. The other defendants also filed their own written statements. The petitioners herein and Smt.Padubai, claiming that their rights were adversely affected by the subject matter of the suit, filed applications dated 9.10.2006 for being impleaded as party defendants in the suit. The trial court rejected these applications filed under Order 1, Rule 10 C.P.C. by order dated 4.4.2007. The petitioners as well as Smt.Padubai, filed separate writ petitions against the order dismissing their applications. During pendency of the writ petitions, Shri Maganlal expired on 28.1.2008 and thus, the writ petitions were dismissed by this Court by order dated 16.8.2011 as having rendered infructuous. The plaintiff Shoorveer Singh moved an application under Order 22, Rule 4 C.P.C. for bringing on record, the legal representatives of Maganlal. Smt.Padubai filed reply to the application stating that Shri Maganlal had executed a Will in favour of the petitioners herein. The trial court, however, allowed the application filed by the plaintiff under Order 22, Rule 4 C.P.C. while discarding the objections raised by the petitioners in their reply and took the legal representatives of Late Maganlal on record under Order 22, Rule 2 C.P.C. The petitioners claimed that once, the application under Order 22, Rule 4 C.P.C. had been accepted, it was obligatory and mandatory for the trial court to have posted the matter for filing of written statement by the legal heirs of Late Maganlal under Order 22, Rule 4(2) C.P.C. but instead of doing so, the trial court posted the matter for arguments on the applications under Order 8, Rule 9 C.P.C. The order dated 20.9.2008 passed by the trial court, whereby the application under Order 22, Rule 4 C.P.C. filed by the plaintiff was allowed, was challenged by the petitioners by filing Writ Petition No.8349/2008 which too, was dismissed by this Court. The petitioners claim that during pendency of the writ petition, the stay order was operating on the proceedings of the suit. After rejection of the writ petition, the trial court proceeded with the suit. The petitioners claiming that as they had been taken on record in the capacity of legal heirs of Late Maganlal, trial court ought to have posted the file for receiving their written statement but rather than doing so, the trial court posted the matter for admission/denial and for framing of issues. By order dated 28.10.2013, the trial court directed that the matter be posted for evidence of plaintiff. The plaintiff filed his affidavit and an application under Order 14, Rule 5 C.P.C. At that stage i.e. on 4.2.2014, they filed a joint written statement along with an application under Order 8, Rule 1 and Order 22, Rule 4(2) read with Section 151 C.P.C. supported by an application under Section 5 of the Limitation Act, requesting the trial court to condone the delay and take their written statement on record. The plaintiff filed reply to the applications opposing the same. The trial court rejected the applications filed by the petitioners by order dated 9.2.2018 which is assailed by the petitioners in this writ petition filed under Article 227 of the Constitution of India. Shri Akshay Nagori learned counsel representing the petitioners vehemently and fervently urges that the petitioners have a right to file separate reply to the suit as per Order 22, Rule 4(2) C.P.C. As per him, it was the obligation of the trial court to have provided this opportunity to the petitioners. He further urges that as per Order 8, Rule 1 C.P.C., the defendant can only file written statement within the stipulated period from the date of service of summons and that, since the trial court failed to provide opportunity to the petitioners to file their own written statement after being taken on record in the capacity of the legal representatives of Late Maganlal, manifestly, the bogey of delay cannot operate against the right of the petitioners to defend themselves. He places reliance on the Supreme Court decisions in the case of Sumtibai and Ors. v. Paras Finance Co. reported in AIR 2007 SC 3166 and Vidyawati v. Man Mohan and Ors. reported in (1995)5 SCC 431 and urges that the legal representatives have a semblence of title and are not mere busy bodies or interlopers and thus, they are entitled to file defence by way of additional written statement and that they cannot be disallowed to file additional written statement merely because some application was rejected earlier. He thus implored the Court to exercise its supervisory writ jurisdiction and quash the impugned order as being grossly illegal, arbitrary and perverse.;