2021 PLP 2315 (YLR)

ALI BAIG, J.

Through the instant civil revision petition the petitioners/plaintiffs have called in question the validity and propriety of the impugned judgment/order dated 2.3.2020 passed by the learned Additional District Judge Nagar whereby the learned first appellate Court has accepted civil first appeal filed by the present respondents/ defendants by setting aside the judgment/ order dated 28-09-2019 passed by the Civil Judge 1st Class Nagar.

2. The facts in brief giving rise to the filing of the instant civil revision petition are that the present petitioners/ plaintiffs (herein after called as petitioners) had instituted a suit for declaration and permanent injunction in respect of suit property fully described in the head note of plaint against the present respondents/defendants (herein after called as respondents) in the trial Court on 10-11-2018.

3. After filing of suit the learned trial Court issued summons to the respondent. Accordingly some respondents appeared before the trial Court on 9.3.2019 and the learned trial Court again issued summons to the remaining respondents for 13.4.2019. On 13.4.2019 the learned trial Court has issued notice under Order I Rule 8, C.P.C. as the suit was filed as representative capacity.

4. Anyhow the attendance of respondents was completed on 29.6.2019 and the learned trial Court fixed the matter for filing of written statement on 17.8.2019. On 17.8.2019 the respondents did not file written statement in the trial Court and suit was adjourned to 31.8.2019 for filing of written statement by the respondents. On 31.8.2019 the respondents again did not file written statement and trial Court adjourned the suit for 28.9.2019 for filing of written statement with notice under Order VIII, Rule 10, CPC.

5. On 28.9.2019 the respondents/ defendants failed to file written statement in the trial Court and accordingly the learned trial Court struck off right of the respondents to file written statement vide order dated 28.9.2019.

6. Feeling aggrieved and dissatisfied with the aforesaid judgment/order of the learned trial Court, the present respondents had filed civil first appeal in the court of learned Additional District Judge Nagar and the learned first appellate Court vide the impugned judgment/order dated 2.3.2020 has allowed the civil first appeal of the respondents by setting aside order of the learned trial Court, hence this revision petition.

7. The learned counsel appearing on behalf of the petitioners contended that the impugned judgment/order passed by the learned Additional District Judge Nagar is contrary to law and facts on the record of the case as such the impugned judgment/order passed by the learned first appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that under Order VIII, Rule 1, C.P.C., the defendants are bound to file their written statement within thirty days but the respondents have failed to file their written statement in the trial Court despite affording three opportunities to them by the trial Court and the learned trial Court had rightly struck of the right of filing of written statement of the respondents and the learned first appellate Court has wrongly allowed the appeal of the respondents, hence by accepting this revision petition the impugned judgment/ order passed by the learned first appellate Court may be set aside. The learned counsel for the petitioners further argued that appeal does not lie against the interlocutory order passed by the learned trial court rather revision lies against the order of the learned trial Court dated 28.9.2019, but the respondents had filed civil first appeal in the court of the learned Addl. District Judge Nagar which was illegal and not maintainable and the learned first appellate Court has wrongly allowed the appeal of the respondents.

8. Conversely, the learned counsel for the respondents opposed the contentions raised by the learned counsel for the petitioners and supported the impugned judgment/order passed by the learned first appellate Court by contending that the learned trial court has not afforded sufficient opportunity to the respondents to file written statement and had struck of the right of the respondents to file their written statement in a hasty manner, therefore the learned first appellate Court has rightly set aside the order of the learned trial court dated 28.9.2019 which may be maintained in the interest of justice.

9. I have heard the learned counsel for the parties at considerable length and perused the record with their able assistance.

10. The perusal of record and particularly order-sheets maintained by the learned trial Court reveal that the learned trial court has not issued specific directions to the respondents to file their written statement. Sufficient time has been consumed in issuing ordinary summons and notices under Order I, Rule 8, C.P.C. The learned trial Court has stated in order-sheet dated 31.8.2019 that written statement not filed. Put up on 28.9.2019 for filing of written statement with notice under Order VIII, Rule 10, C.P.C. On 28.9.2019 the learned trial Court has struck off the right of the respondents to file their written statement. The learned trial Court without affording/ mentioning specific last opportunity has ceased the right of the respondents to file written statement.

11. It is settled principle of law that the right of filing of written statement is substantial right given to the defendant by law and cannot be taken away without affording fair/proper opportunity to the respondents/defendants. Thus the learned trial court had passed the order by stricking of the right of the respondents to file written statement in a hasty manner and without applying its judicious mind. Thus the learned Additional District Judge Nagar has rightly set aside the judgment/ order of the learned trial Court dated 28.9.2019.

12. Even otherwise it is settled principle of law that courts are sanctuaries of the rights of the persons brought before them. The Courts should leave no stone unturned in discharging their duties conferred upon them by statute and should not hesitate in using powers to do justice. Justice denied would mean justice buried.

13. For the foregoing reasons I do not find any illegality and material irregularity in the impugned judgment passed by the learned first appellate court Nagar. In my opinion the impugned judgment does not require interference by this court as the learned first appellate Court has rightly set aside the order passed by the learned trial Court. Accordingly this revision petition being devoid of merit is hereby dismissed with no order as to costs. File. SA/150/GB Petition dismissed.