Allowed

Munshi Khan v. Mohd Khurshid Khan

J&K HC2 Dec 2021CR/9/2019

Case brief

AI extract

What is this about?

The High Court allowed a petition challenging the dismissal of a review application that closed the right to file a written statement. The Court set aside the impugned orders, finding the trial court erred in not allowing the statement due to technical non-compliance while the defendant intended to file, and granted a fresh opportunity to file the statement.

What did the court decide?

Impugned orders dated 10.10.2018 and 14.05.2019 set aside. Defendants granted opportunity to file written statement and deposit costs.

Munshi Khan Vs Mohd Khurshid Khan — Contract and Commercial Disputes | J&K HC (2021)

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Sr. No.72

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Pronounced on: 02.12.2021

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CR No. 9/2019 CM No. 4010/2019

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Munshi Khan and another

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….. Petitioner(s)..

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Through: Mr. Anzar Ahmed Khan, Advocate.

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Mohd. Khurshid Khan and another

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.…. Respondent(s)..

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Through: Mr. R.P.Sharma, Advocate.

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Coram: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

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ORDER

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The controversy involved in the present petition pertains to filing/non-

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filing of the written statement by the petitioners (defendant Nos. 3 & 4 in the suit). The certified copies of the relevant orders passed by the trial court are on record. It appears from the record that vide order dated 20.07.2018, the petitioners herein were granted opportunity to file written statement. As the needful was not done, the court vide order dated 30.07.2018 granted last opportunity to the petitioners to file the written statement. As the written statement was not filed on the next date fixed in the case i.e. 08.08.2018, the court further granted time to the defendants to file the written statement subject to payment of Rs.3,000/as costs. On 18.08.2018, the defendants produced the written statement which was placed on record. However, the counsel earlier appearing on behalf of defendant Nos. 3 & 4 raised objection that the advocate has not

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CR No. 9/2019

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obtained NOC from him. In view of the same, the case was put up for further proceedings on 10.10.2018. On 10.10.2018 it is noted in the order of the court that despite granting last opportunity to file the written statement and to deposit the cost the same has not been done till date. In the light of the same the right to file the written statement was closed.

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The defendants filed application for review of order dated 10.10.2018. The application, however, came to be dismissed by the court vide order dated 14.05.2019 as the court did not find any error apparent on the face of record. It is made out from the order impugned that the written statement, power of attorney and application filed under Order 7 Rule 11 CPC were not signed and were not brought on record. The cost was also not paid by the defendants. The order dated 10.10.2018 simply reveals non-payment of cost and non-filing of written statement and, thus, right to file written statement was closed. On 18.08.2018, as mentioned above, the written statement produced on behalf of defendant Nos. 3 & 4 was not formally brought on record though placed on the file as objection was raised with regard to not obtaining NOC from the earlier counsel representing the said defendants.

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After going through the orders passed by the trial court, the court finds that the defendants intended to file written statement but due to the objection raised by the counsel appearing earlier on behalf of the said defendants, the matter regarding the filing of the written statement could not be taken to logical conclusion on the said date and the matter

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CR No. 9/2019

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remained pending in this respect. May be the defendants did faulter in filing the written statement as the court has pointed out that it was not even signed though filed, however, the fact remains that the defendants did take steps for filing the written statement. It is not reflected from order dated 10.10.2018 that the written statement was not formally placed on the file for the reason mentioned in the order of review dated 14.05.2019 nor this fact has been brought to the notice of the defendants by the Court on the said date of 10.10.2018. The defendants could be under genuine impression that written statement was placed on record though the cost was not paid by them. The court is of the view that in any case the hyper technical view of the matter should not have been taken by the trial court keeping in view the overall facts and circumstances of the case. The defendant No.1 was yet to be served by the time the right to file the written statement was closed vide order dated 10.10.2018. The review petition has been dismissed on those facts which do not make mention in the order dated 10.10.2018.

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The court, keeping in view all circumstances of the case, allows the petition and the order impugned dated 14.05.2019 is set aside and so is the order dated 10.10.2018. The defendants are granted opportunity to file the written statement by the next date before the trial court without fail. The costs as imposed by the trial court of Rs.3000/- shall also be deposited before the trial court by the said period.

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The parties are directed to appear before the trial court on 04.01.2022.

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CR No. 9/2019

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6. The petition is disposed of .

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(Puneet Gupta)
Judge
Jammu
02.12.2021
Narinder
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No

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NARINDER KUMAR SHARMA 2021.12.02 13:09 I attest to the accuracy and integrity of this document

Munshi Khan v. Mohd Khurshid Khan

Case brief

What is this about?

What did the court decide?

Munshi Khan v. Mohd Khurshid Khan

Case brief

What is this about?

What did the court decide?

What the court decided

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