r ^ll"s" (^el- •^^ IN THE_HON'BLE CHHATTISGARH HIGH_COURT AT BILASPUR /' ~^\ ._ W.P.NQ, •-' i^ /20Q3_(S.B,1 PETITIONERS / .^^•••^ yy^ /^'•y^yr <^*' ^^^•'^,^ •^y<ff!:^y''f' ^s^' <^'^^>''' "yy' ^.^" 'S:'<-^'\\"\.l^ff jj 'A 'tf>.~sA->'- ' 'S // ^'^^^s-^' uaa.';!> ??%''' 1. 2. 3. il Murlidhar Verma aped about 75 years son of Shri Dhanaram Venna, Jaiprakash, aged about 25 years son of shri Murlidhar Verma. Lekhchand aged about 22 years, son of Shri Murlidhar Verma. Rudrapratap aged about 15 years (minor) through : natural guardian father Shri Murlidhar Verma son of Shri Dhanaram Verma. Smt Kunjbati Ghasta, aged about 46 years, wife of Shri Murlidhar All are agriculturist and resident of village Belargondi, P.H.N. 50 Municipal Corporation Dhuriya, Tah and Distt. Rajnandgaon (C.G.) '"':":s'^ - \-^ RESPONDENTS ^I ?:.'. 'I-^'' i .rSS^ A 'w~ /r B'^ -4 /1\ s? ,<?>a?'^-A'X "fy .'f{~r .c^r • "/i<y <y ^ ^;^- v^v .!SS ^y 1 Smt Budabai, aged about 50 years Widow of Late Nageshwar Verm.a 2. Chinta Haran alias Kriparam aged about 32 years son of Late Nageshwar Verma. 3. Ramkrishna, aged aboutfe years son of Shri Murlid'iar Verma, \ Sl.No. 1 to 3 are resident of villag< Sebantapara Dongargaon, Tah Dongargaon, Distt. Rajnandgaon (Chhattisgarh). ^4. The State of Chhattisgarh, through : / The District Collector, Rajnandgaon (Chhattisgarh). WRIT PETITION UNDER ARTICLES 227 OF THE CONSTITUTION OFINDIA. XI-HC-22 air^TW t1:TR?3n^T MR?fffS(f 3:°r^iraT?pr, grf^fTre, f^irey .•P:^o...^^_ 3:"^T^(ITW(lf?(T wfe*rwRff^'te^ d^RTC ^srt^iTsn^r Shri P.K.C. Tiwari. Sr. Counseilviiith Shri Shashi Bhushan, counssl fcrthe petitioner. Shri Anup iVlajumdar, counsel ijsr respondejnt No. 1 to 3. Shri Vivek Sharma, P.L. for th^ State/respondent Heard. The petitloner has preferred|this petition as he is aggrieved by the impugned order dated 03/09/2003 ^iassed in Civil Suit No. 21-A/2002-03 by Second Civil Judge Ciass i!, Rajnanjjgaon and by which the opportunity of the petitioner/defendants to file written sljatement has been ciosed as per provls'ons of Order 8 Rule 1o of CPC as th^ written statement was not filed b/ the defendants even after expir/ of 90 dsjys. The case of the petition^r is that after sen/'ice of notice, the petitioners/defendants moved an ap^iicant under Order 7 Rule 11 of CPC stating therein that the plaintiff No.3 who i^ the son of defendant No.1 is a person of •jnsound mind and the suit has be^n filed in collusinn with one Kushiram and Vibhutibhushan through the menta'il'))' retarded plaintiff. !t was also stated that the plaintiff No.3 who is mentally retard^d since then aged 13-14 years and as such the suit was incompetent for 'vant of compiiancs of tne provisions of Orde' 32 of the CPC. !n reply to the said applicatijan on behaff ofthe plaintiffs/respondsnts the above averments were not categori[;aily denied and stated that for the protection of the interest of the person of un^ound mind, the suit is competent as t!ie suit has not been filed against the inter^st fo the person w unsound mind. After fi!ing of the reply, the case was adjoum^d for 11/08/2003, 21/08/2003 and 03.'09/20Q3 for arguments on the above app!ij;ation of the defendant. On 03/09/2003, the plaintiff moved an application und^r Order 8 Rule 10 of CPC stating t'nerein that the defendants have not submittetl their written statsment within the stl'pulated norinri ae pe>r Urder 8 Rule 1 of CFfC and in viev>? ofthe above, the opportunit/ of (^s^) XI-HC-22 j£T•^ll<)]Mi|, 9Tf)tl'l(o, Esldl'Uy IIHWTSCTTq; riraw ^...^.p...^...^^. "')- "\ an^r^T f^iresn^T CTRi'^ltcr tr*i. ^ft, 3:n^T?RrrwHf?tT ~a— iing vi/ritten statement be ciosed undi +iolo<n^ Ki^dTfffei<Ti <Riwi< ^3l1^R'3n^T 'e appllcation of the plaintiffs and closed jbelow by the impugned order ailowed t| |the opportunity of fiiing return statemenf} Leamed counsel for the petition^ lcommitted illegality in as much as wlthc|ut deciding'the objection preferred by the Ipetitioners under Order 7 Rule 11 of CifC and without following the provislons of Order 32, has aNowed the app'ication ^f the plaintiff considering that the sijit in question was properly constituted suit[and since the defendant did not fiie the vi/riiten statement within the stipulated [jieriod, the mandatory provision of Orcier 8 T submits that the learned tria! Judce has Rule 10 of CPC v/as effected and th S defendant could not be aliowed tc file written statement. It is argued that unless the C|:oi-irt beiow after conducting the enquir,' reaches to the conclusion that the p'aifitiff No.3 who is alleged to be a person of unsound mjnd was competent to file tf\e Civi! Suit with the help of the neA friend no vaiidly constituted suit was before the Court below and learned Civil Judge ought to have taken off the fiie. It w^s the duty of the Court below to corduct enquiry under Order 32 sub pj!e 2 of CRC. On the other hand iearned couhsel for the respondent submits that it was not open to the Court below to extend|the date under O'der 8 Ruls 1 of CPC for fiting 'written statement beyond the pej-iod of 90 days and there is no iiiegality in the impugned order because the defe within 30 days from sen/ice of summ the service of summons, 'vritten stat themselves have given up their right t^ idant was required to file vi/ritten statement bns and in this case even after 90 da'/s of sment was not filed. Thus, ths petiticners fiie the written statement. In support of the contention, |counsel for the petitioner reiies upor; the judgment ofthis High Court reported i^ 2S95 ffj C.Q.L.J. Smt. Anuractha Qube^ Vs. Prasen @. Laxmikant Diihev 26 wherein It has been held that where the defendants fail to fi!e written staten] under Order 8 Rule 1 of CPC and dd ^ lent wlthin a stipulated period of 30 days es not make any prayer for extending t'me -"•"L (^^f^) *->fj--AhatUsasrhMBllaspur •K^ '^^ 3:ST '^WW-f, WTS\W\6, (sidiy^i Wlfepfl? WRTt'ff felA ^RZI ^3Tl^!T3n^T f3r fi'ins final written statement. the oi closed and the Court has no inhere statement bevond the Deriod of 90 dd ^portunity of fi'ing wri^en stateiTienS is to 'se |nt power te esAend the time to fiie writtan ,/<yo. ! have heard 'earned counsel|for the parties and i have gone through tne JL.dgment and the documents avaii^ble on record'From bare perusal of the spplication under Order 7 Rule 11 of pPC and reply to ths said application by the respondents it is evident that ther| 'egarding the competency of the pia| to me, the Court below was duty boi) the defendants to file written statems ^ was a dispute before the Court beiovv ntlff No,3 to fiie ihe said suit and according ind to decide the same first before direct;ng int as the allegation that the plaintiff No.3 is 3 person of unsound mind has not b^en specffically denied and unless this fact is decided by conducting an enquiry Ljnder Ordei;2 Rule 2 of CPC, the period of ilmltation for filing written statement cfoes not commence. On the aforesaid discussion,| the petition ofthe petitioner is allowed and the impugned order is set aside \wt<T\ a direction to ths Ccurt below to decide the application under order 7 Rule 11 of|CPC particulariy regsrding the unsoundn'iss of mind ofthe plaintlff No.3 and afte^ proceed further in the suit. With the above said obsen/ai such enquiry record a finding and thereafter r.. .'^ !- ^;^^^^^p| (l<.ri}<OA -tS I^S"^ °"1 i\^^^--S-4. '^ At this juncture, it is pointed| oijt by the counsel for the respondents •:hat the application of the petitioner unijler Order 7 Rule 11 of CPC was dismissed subsequently on 17/10/2003 by rec<|)rdlng a finding that the piaintiff No.3 is not g, person of unsound mind. Be tha't a^ it may, the Court shsil provide three wseks' time to the defendant to file Vfritten ^tatement. ' — - - Sd/- Dhirendra Mishra (^^ir)