IN THE HIGH COURT OF JUDICATURE AT BILASPURKZHHATTISGARHI ‘ WRIT PETlTlON UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA. WRJI PETlTlON (227} NO’EQQ /2010 PETlTlONER > Roju Sohu, Son of Sohas Ram Sahu, g/“y Déf/é/L’OE’VT Aged about 25 years, R/o. ViHoge Mudpor, P.S. ond Tohsil Jaiioipur, Disfricf Jonjgeer Chompo [c.G.) VERSUS RESPONDENT Fol Boi, D/o. Mohon Lo]. oged 24 years, Caste Sahu, R/o. Village Mudpor, P.S. $v‘9 and Tahsll Jcljolpur, Dislricl Jonjgeer % l. Chompmco) HIGH CQURT GE CHEATTESGARH AT BILASEWJR 8.3: Hon’ble Shri Prashzmt Kumzu' Mi§hm VVI'it Petition (227} N0. 1972/2010 Appearance: Shri S.C. Verma, counsel for the petitioner. Shri Shivendra Bhardwaj, counsel for the reSpondent. W’RIT FETITEGN UNDER A;RTECLE 227 OF TEIE CGNSTITUTION OF INDEA ORAL ORDER (26.08.2010) The instant writ petition has been preferred seeking quashment of the proceedings in Civil Sun No. 5-Bx’2009 pending in the c0111“: of Additional District Judge, Sakti District Janjgir-Champa. The suit has been preferred by the respondent/plaintiff seeking damages of Rs. 3 lakhs on the pleadings that the petitioner/defendant committed sexual intercourse on the promise of marriage and later on refused to many her. In the criminal case the petitioner has been convicted for offence under section 376 of IPC by judgment of conviction dated 23rd April, 2008 in Sessions Trial No.167/2007l (2) Counsel for the petitioner submits that his application for staying the further proceedings in the suit has wrongly been rejected. According to him, his appeal bearing Criminal Appeai No. 4%7/2008 ‘/ is pending before the Hon’ble High Court and he has been enlarged on bail, therefore the judgment of conviction has not yet attained l PETITEONER Raju Sahu Vergus RESPONDENT : Fm} Bai finality. However, if in the meanwhile the suit is decreed against him, he shall suffer irreparable 103$ and that it will create complication and multiplicity of litigation. (3) Counsel for the respondent submits that the conviction has not been stayed by this court, therefore the suit should be allowed to proceed with. (4) The prayer regarding quashment ofthe proceedings in civil suit cannot be entertained inthis writ petition. A civil suit is decided in terms of the procedure envisaged in the Code of Civil Procedure and the defendant is at liberty to invoke any such provisions in the Code of Civil Procedure to pray that the suit is not maintainable on any of the ground mentioned in Order 7 Rule ll of CPC. However, the prayer made by the petitioner that during pendency of the criminal appeal the suit should not be allowed to proceed has some substance, because if ultimately it is found that the petitioner is not guilty of committing an otfence under section 376, the same may have a bearing on the out come ofthe civil suit. (5) In the circumstances, it is directed that the proceedings in the civil suit shall remain in abeyance during pendency of Criminal Appeal No. 487/2008 in this court. As soon as the criminal appeal is decided, the parties shall be at liberty to move the trial court for iroceeding ahead with the suit. (6) Learned counsel for the petitioner also submits that by the impugned order the learned trial court has also closed the defendant’s wmAgv.<-~M_¥.. /t a ”II“ right to file written statement. It is submitted by him that a&er service of notice, the defendant prayed for time for filing written statement which was granted by the court, howeven after filing of the application by the petitioner for keeping proceedings of the suit in abeyance, the civil suit was fixed for hearing on that application and when the application was dismissed by the impugned order, his right to file written statement has also been closed without granting any further opportunity. He submits that on 6/02/2010, the case was fixed for hearing on the defendant’s application under section 10 of CFC and was not fixed for filing of written statement, therefore the trial court, after deciding the application under section‘ 10 of CPC on 6/02/2010 should have granted at least one opportunity to file the written statement. f7) 0n perusal of the order sheets, the submission made by learned counsel for the petitioner appears to be correct. The suit was fixed on 10/04/2009 for filing of written statement. On the said date, the defendant moved application under section 10 of CPC and thereafter the suit proceeded for filing of reply and hearing argument on the said application. On 6/02/2010, the application was disposed of by the impugned order and at the same time the defendant’s right to file written statement has been closed. (8) . The provisions contained in Order 8 Rule l of CPC prescribing period of 90 days for filing of written statement is directory. In the (present case, the suit was not fixed for filing of written. statement on K t \ , 0/ @ , 6/02/201, however, after deciding the defendant’s application under secti 10 0f PC the tfial calm has clased the defendant’s right to file written statement. In the Opinion of this court, the triad court should have allowed at least one opportiy to the defendant to file his written atateme after disposal of the application under section 10 ofCPC. (9) In the circumstnces, it is directed that the petitioner/defendant shall e his written statement Within a period o£ four weeks from today and shl also pay cost of Rs.2000/- to the respondent/plaintitf The written statemeut shall be placed on record ofthe civil suit. (10) The respondent shall be at liberty to move an. applation for early hearin of the Criminal Appeal No. 487/2008, pending in this court. ll l) The petition stands sposef./,,S_d- div7 Prasant Kumarxishra _ Judge a r r Lk 0 on C unt nt a fil al ic g h M