In a writ under Article 226 challenging a Sub Judge's order in an eviction suit, the court dismissed the petition holding the prayer to file a second written statement was a delay tactic and the initial authorization by the petitioner validated the representative's action.
Application dismissed; prayer to file fresh written statement rejected.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16319 of 2012 ====================================================== Md. Ishaque Alam S/O Abdul Razzaque R/o 'Prince Jewellery', Sanmatimarket, Neem Chand Road, Kishanganj, P.O., P.S. & DistrictKishanganj .... .... Petitioner/s Versus Jitendra Kumar Jain S/O Shikhar Chand Jain R/o Neem Chand Road, Sanmati Market, Kishanganj, P.O., P.S. & District- Kishanganj .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 02. 18-10-2012 Heard Mr. Abbas Haider, learned counsel appearing on behalf of the petitioner.
This application under Article 227 of the Constitution of India has been filed questioning the order dated 09.07.2012 passed by learned Sub Judge-I, Kishanganj in Eviction Suit No. 1 of 2009, whereby the prayer of the defendant-petitioner permitting him to withdraw the earlier written statement dated 21.09.2010 and to permit him to file a fresh written statement on 16.01.2012 has been rejected.
The suit in question is in the nature of Eviction Suit filed in the year 2009. The defendant-petitioner who claims to be a member of a political organization had authorized his brother-inlaw, namely, Faiyaz Ahmad to look after and make proper pairvi of the Eviction Suit. Following the authorization placed at Annexure-1, a written statement was filed by the said attorney of
Patna High Court CWJC No.16319 of 2012 (2) dt.18-10-2012
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the petitioner on 21.09.2010. One year thereafter the petitioner charging his authorized representative of being collusive with the plaintiff, filed an additional written statement on 06.09.2011 which was subsequently withdrawn and thereafter the another written statement was sought to be filed on 16.01.2012, which prayer has been rejected by the learned court below and hence the present application.
The only ground that is sought to be advanced by Mr. Haider appearing for the defendant-petitioner is that the authorized representative Faiyaz Ahmad was not given authority to file any written statement and that he ought to have taken consent of the petitioner before filing the same. The Eviction Suit is of the year 2009 with the authorization given on 30.08.2010 and within three week’s thereafter the written statement was filed on 21.9.2010. No steps was taken thereafter by the petitioner for withdrawing the written statement. In fact perusal of the order impugned manifests that the written statement was permitted to be filed only after deposit of costs. That the petitioner chose to file an additional written statement on 06.09.2011 without making any prayer for withdrawal of the written statement earlier filed manifests that no complaint existed thereto. It is a different matter that thereafter the petitioner chose to withdraw the additional written statement.
Patna High Court CWJC No.16319 of 2012 (2) dt.18-10-2012
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In the circumstances the prayer made by the petitioner for filing of the second written statement is clearly an attempt to delay the proceedings. Even otherwise the petitioner having authorized his brother-in-law to do proper pairvi in the matter would include all such activities which are necessary in a legal proceedings including filing of written statement and the petitioner cannot make any complain in this regard. The petitioner having issued authorization cannot resile from the delegation made by him.
The application being devoid of merit is dismissed.
(Jyoti Saran, J)
S.Sb/-
2 issues framed by the court
Whether the High Court should allow a prayer to file a fresh written statement when the filing was authorized by the petitioner.
Whether the authorized representative had the authority to file the written statement under the given authorization.
Md. Ishaque Alam
Jitendra Kumar Jain
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
