Allowed

Smt. Mamta Khare v. Smt. Mamta Das

Chhattisgarh HC8 Jan 2025WP227/16/2025

Case brief

AI extract

What is this about?

Defendants' right to file a written statement was closed by the trial court after 90 days despite a pending Order 7 Rule 11 CPC application. The High Court, relying on Desh Raj v. Balkishan holding the time limit directory, set aside that order and directed the trial court to decide the Rule 11 application first; petition allowed subject to cost.

What did the court decide?

Order dated 02.12.2024 closing right to file written statement set aside; trial court directed to decide Order 7 Rule 11 CPC application first; petition allowed subject to Rs. 2,000 cost to plaintiff.

Smt. Mamta Khare Vs Smt. Mamta Das — Property and Title | Chhattisgarh HC (2025)

2025:CGHC:1367

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 16 of 2025

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1. Smt. Mamta Khare W/o S. K. Khare Aged About 54 Years R/o House Of Raju Verma, Delight Compound, Civil Line, Jabalpur, M.P. (Defendant No. 1)

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2. S. K. Khare S/o Late H. M. Khare Aged About 58 Years R/o House Of Raju Verma, Delight Compound, Civil Line, Jabalpur, M.P. (Defendant No. 2)

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... Petitioner(s)

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versus

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1. Smt. Mamta Das W/o B. Das Aged About 51 Years R/o Torwa Basti, Tahsil And District Bilaspur, C.G. (Plaintiff)

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2. State Of Chhattisgarh Through Collector Bilaspur, Office Of Collector, Bilaspur, Near Nehru Chowk, District Bilaspur, C.G. (Defendant No. 3)

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... Respondent(s)

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For Petitioners	: Mr. Ravish Verma, Advocate
For Respondent No. 2/ State	: Mr. Shubham Bajpai, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey

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Judgment On Board

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09/01/2025

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1) By way of this petition, the petitioners have sought the following

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relief(s):-

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10.1. That the Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioners, in the interest of justice.

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10.2. That the Hon'ble Court may kindly be pleased to quash/set aside of the impugned order dated 02.12.2024 passed in Civil Suit No. 112-A/2021 by giving opportunity to the petitioners/defendants for filing/submission of the

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written statement to the learned Trial Court and direct/order to the learned Court below of 5th Upper District Judge, Bilaspur (C.G.) therefore superintendence of the Hon'ble Court is require for proper direction(s)/order(s). 10.3. That, the Hon'ble Court may kindly be pleased to pass the direction about consideration of the application under Order 7 Rule 11 of CPC be decided prior to entry in the merit of the case.

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10.4. That this Hon'ble Court may kindly be pleased to grant any other relief as it may deem fit and appropriate in the facts and circumstances of the case.

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2) Facts of the present case are that the plaintiff/respondent No. 1 filed a civil suit for declaration of title and permanent injunction pertaining to land bearing Khasra No. 1231, total ad-measuring 1,760 sq. ft. situated at Torwa P.H. No. 22, Block Bilha, District Bilaspur and claimed right over the suit property by the principle of prescription. Petitioners/defendants No. 1 and 2 moved an application under Order 7 Rule 11 of CPC on 02.12.2024. Plaintiff was directed to supply the relevant documents to defendants vide order dated 12.09.2024. The order-sheet of 21.11.2024 would show that documents were not supplied. On 02.12.2024, the right of defendants No. 1 and 2 to file written statement was closed on the ground that 90 days have already elapsed.

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3) Learned counsel for the petitioners / defendants No. 1 and 2 submits that on 21.11.2024, the plaintiff was directed to supply relevant documents to defendants No. 1 and 2 and on the very same date, documents were given to them. He contends that the matter was set for further hearing on 02.12.2024 and on that date, the counsel for the petitioners sought an adjournment to file written statement but the right of petitioners to file written statement was closed. He argues that when the application moved by petitioners under Order 7 Rule 11 of CPC

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was pending consideration, the learned trial Court ought to have decided the application first and then proceeded with the matter. He prays to set aside the order dated 02.12.2024 whereby the petitioners’ right to file written statement has been closed.

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4) On the other hand, learned State counsel submits that petitioners failed to file written statement within the statutory period of 90 days, therefore, the learned trial Court rightly closed the right of the petitioners to file written statement. He states that this petition deserves to be dismissed.

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5) I have heard learned counsel for the parties at length and perused the material available on record.

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6) Perusal of the order-sheet dated 21.11.2024 would show that documents were supplied by the plaintiff on the same date. On the next date i.e. 02.12.2024, the defendants (petitioners) sought time to file written statement but the right of defendants to file written statement was closed which appears to be erroneous.

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7) It is not in dispute that the petitioners failed to file written statement within the statutory period i.e. 90 days but it is a well-settled principle of law that time-limit provided in Rule 8 Order 1 of CPC is directory in nature and not mandatory as held by the Hon’ble Supreme Court in the matter of Desh Raj VERSUS Balkishan (Dead) Through Proposed LR Ms. Rohini reported in (2020) 2 SCC 708.

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8) Taking into consideration the facts of the present case and the law laid down by the Apex Court in the matter of Desh Raj (supra), the order passed by the learned trial Court dated 02.12.2024 whereby the right of petitioners/defendants No. 1 and 2 to file written statement has been closed is hereby set-aside.

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Learned trial Court is also directed to decide the application moved by the petitioners under Order 7 Rule 11 of CPC before proceeding with the matter.

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9) Accordingly, the instant writ petition stands allowed subject to payment of a cost of Rs. 2,000/- payable to the plaintiff.

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Sd/Rakesh Mohan Pandey JUDGE

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Ajinkya

Smt. Mamta Khare v. Smt. Mamta Das

Case brief

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Smt. Mamta Khare v. Smt. Mamta Das

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