IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 24.11.2008. S.B. CIVIL WRIT PETITION NO.3564/2008. Prahlad Meena Vs. Nathu Lal & Ors. HON'BLE MR. JUSTICE DALIP SINGH Shri R.K. Agarwal, for the petitioner. Shri K.K. Mehrishi assisted by Shri Harsh Kulshrestha for the respondent. Heard learned counsel for the parties. The matter has come up on the application submitted by the respondent under order 39 rule 2 CPC for restraining the plaintiff petitioner from carrying out construction for disputed property. Learned counsel for the parties submitted that the writ petition itself may be heard as the trial has been stayed. It is further submitted that on account of stay of proceedings before the learned trial court, the learned trial court has not taken a decision to consider the application for grant of temporary injunction also. With the consent of the learned counsel for the parties the writ petition itself has been heard. In the writ petition the petitioner has challenged the order darted 1.2.2008. The dispute is that the plaintiff petitioner filed a suit for specific performance of the agreement alleged to have been executed by the defendant No.1 and also for the subsequent sale deed executed by the defendant No.1 of the property in dispute in favour of the defendant No.2. On the summon issued the defendant Nos. 1 and 2 put their appearance before the learned trial court on 4.2.2006 one Liladhar Advocate filed Vakalatnama on behalf of the defendant NO.1. on 16.2.2006 the written statement on behalf of the defendant No.1 came to be filed which is Annexure-3 on record. The defendant No.2 however sought time to file his written statement. In the written statement Annexure-3 the defendant No.2 admitted all the contents of the plaint and raised certain additional pleas. This written statement is said to be signed by Nathu Lal defendant No.1. The order sheet dated 16.2.2006 has been field as Annexure-4 in which it has been mentioned that one Shri Om Prakash Sharma, Advocate present on behalf of the defendant No.1 and he has presented the written statement on behalf of the defendant No.1. It may be stated that Shri Om Prakash is not said to be counsel for the defendant No.1 as no Vakalatnama has been field engaging him. Copy of this written statement was furnished to the learned counsel for the plaintiff. It may also be mentioned here that on the first date the summons were served the case was fixed on 4.2.2006 on which the Shri Liladhar Advocate had submitted the Vakalatnama on behalf of the defendant No.1 Nathu Lal. On 16.2.2006 itself an application was preferred by the defendant No.2 but the same appear to have been filed in the court on 17.2.2006. The said application is Annexure-7 on record. In the said application filed by Nathu Lal defendant No.1 it has been stated that the written statement which has been filed admitting the plaint averments of the plaintiff may not be taken on record and he may be permitted to file a fresh written statement on the grounds mentioned therein. This application is supported by an affidavit of Nathu Lal defendant No.1 sworn on 16.2.2006. The court directed that the application be listed on the date already fixed which is 28.2.2006. As per the learned counsel for the petitioner on 21.2.2006 another application Annexure-8 on behalf of Nathu Lal defendant No.1 came to be filed in which it was prayed that his application dated 17.2.2006 Annexure-7 may be dismissed and his written statement dated 16.2.2006 may be kept on record. Yet another application Annexure-9 came to be filed on 21.2.2006 both these applications came to be filed through Atul Vashistha, Advocate. In the application Annexcure-9 it was submitted that the application dated 17.2.2006 Annexure-7 was filed under duress and the registered sale deed dated 28.2.2005 in favour of Shyam Lal defendant No.2, brother of defendant No.1 may be declared to be cancelled invalid and inoperative and the suit may be decreed for specific performance in favour of Prahlad Meena the plaintiff. On the date fixed in the suit i.e. 28.2.2006 the defendant No.1 yet again filed another application which has been placed on record as Annexure-10 wherein the defendant No.1 again expressed the circumstances relating to the filing of the written statement on 16.2.2006 and his subsequent applications and prayed that the earlier written statement dated 16.2.2006 may be taken off the record and he may be permitted to file the written statement. The reply to the aforesaid application was filed by the plaintiff which is available as Annexure-11 to the writ petition. On 9.5.2006 the defendant No.1 filed a fresh written statement which is available as Annexure-5 on record denying the rights of the plaintiff in to to. It appears that the learned trial court held an enquiry in the light of the above facts in which the defendant No.1 was examined by the court and that his statement is submitted as Annexure-13 on record. Learned trial court with a view to decide the aforesaid dispute after having considering the submissions made by the parties passed the impugned order dated 01.02.2008 Annexure-1. The operative portion of the said order reads as follows : "इसी ूकार से जो अÛ य जवाबदावा पेश Ǒकया है उसमɅ पूव[ मɅ पेश Ǒकये गये जवाबदावा से िभÛ न तØ यɉ का उã लेख Ǒकया गया है। ूकरण जवाबदावे कȧ ǔः थित से आगे नहȣं बढ़ा है। अभी मामले मɅ तनǑकयात कायम नहȣं कȧ गयी ् हɇ। ूितवादȣ संÉ या-1 कȧ मानिसक व शारȣǐरक ǔः थित के बारे मɅ ǔजससे Ǒक उसके सोचने व समझने के बाबत कोई िनं कष[ ् िनकाला जा सके, È यɉǑक अलग अलग अिधवÈ ताओं के Ʈारा अलग अलग ूाथ[नापऽ व जवाबदावा पेश Ǒकये गये हɇ जबǑक ूारà भ मɅ ूितवादȣ संÉ या-1 कȧ ओर से ौी लीलाधर अमवाल को हȣ अिधवÈ ता िनयुÈ त Ǒकया गया था। Ǒकन पǐरǔः थितयɉ मɅ बाद मɅ अिधवÈ ता ौी ओमूकाश एवं ौी अतुल विशं ठ ने ूितवादȣ संÉ या-1 कȧ ओर से वकालतनामा पेश Ǒकये इस ः टेज पर इस बारे मɅ ǒवचार करना Û यायोिचत ूतीत नहȣं होता है लेǑकन ǔजन पǐरǔः थितयɉ मɅ भी जवाबदावा पऽावली पर पेश Ǒकया गया है, ǔजस ूकृित का ूकरण वादȣ कȧ ओर से पेश Ǒकया गया है उसको देखते हए यह Û यायोिचत ूतीत ु होता है Ǒक दोनɉ हȣ जवाबदावे जो ूितवादȣ संÉ या-1 कȧ ओर से पेश Ǒकये गये हɇ ǐरकाड[ पर रखे जायɅ तथा आवँ यक ǒववाƭक कायम Ǒकये जाने के बाद साआ य के बाद हȣ ूकरण का िनण[य Ǒकया जाये। ऐसी ǔः थित मɅ ूितवादȣ संÉ या-1 कȧ ओर से जो ूाथ[नापऽ जवाबदावा को ǐरकाड[ पर िलये जाने व नहȣं िलये जाने के िलए पेश Ǒकये गये हɇ उनके सà बÛ ध मɅ यह आदेश Ǒदया जाना Û यायोिचत है Ǒक दोनɉ हȣ जवाबदावा ूितवादȣ संÉ या-1 कȧ ओर से सशपथ पेश Ǒकये गये हɇ। िलहाजा दोनɉ हȣ जवाबदावɉ को ǐरकाड[ पर रखे जाने का आदेश Ǒदया जाता है। आदेश आज Ǒदनांक 1.2.2008 को मेरे Ʈारा खुले Û यायालय मɅ सुनाया गया।" As would be seen from the above, the learned trial court has directed that both the written statements filed by the defendant No.1 be taken on record. Being aggrieved by the aforesaid order passed by the learned trial court the plaintiff petitioner has filed the present writ petition. The submission of the learned counsel for the petitioner is that the learned trial court has failed to exercise the jurisdiction vested in it and has also committed material illegalities in ordering that both the written statements be taken on record. He submits that under the Code of Civil Procedure only one written statement can be taken on record and in case the defendant intends to resile from his earlier written statement he has to move an application either explaining the circumstances in which he make those admissions earlier and seek permission of the court to amend the written statement explaining the circumstances and the grounds for the same. The said application containing the grounds for seeking the amendment for revoking the admission may be considered by the court and after considering the totality of the circumstances the court may either accept the application for the amendment of the written statement or refuse the same. It is further submitted that in no event can both the written statements be ordered to be taken on record which are in-consistent to each other as in that case it may not be possible to determine the issues in the suit. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of Gautam Sarup Vs. Leela Jetly & Ors. reported in 2008 Vol.7 SCC page 85 where in similar circumstances the court was of the opinion that the learned trial court is required to hold an enquiry into the circumstances as stated by the retracting party and on consideration of which one of the two written statements and the pleas raised therein may be ordered to be considered as written statement for the purpose of trial of the suit and rejecting the other. Learned counsel appearing on behalf of the respondent sought to submit an explanation of the circumstances leading to the present controversy which resulted in the applications filed by the defendant NO.1 as also the applications and the second written statement being filed on behalf of the defendant No.1 including the facts as to whether the defendant No.1 had engaged Shri Om Prakash Sharma, and Shri Atul Vasishtha, as counsel on his behalf for filing the written statement dated 16.2.2006 and the application dated 21.2.2006. I have considered the above submission I am of the view that it would not be safe for this court in writ jurisdiction to give any finding on the pleas raised by the learned counsel for the respondent. Having gone through the judgment of the Hon'ble Supreme Court in Gautam, Sarup's case (supra) I find that the procedure adopted by the learned trial court in directing both the written statements to be taken on record cannot be said to be the correct approach. The learned trial court is directed to consider the material on record to take a decision after holding an enquiry as to which of the two written statements filed by the defendant No.1 should be allowed to be taken as the written statement in the present case based upon the submissions of the parties. For this purpose the learned trial court is directed to hold a detailed inquiry after affording an opportunity to both the sides of leading evidence in support of their rival contentions and also determining the issues that may be relevant for the purpose of the said inquiry and accordingly arrive at a finding as to which of the written statement should be taken on record. Subject to the aforesaid, the directions issued by the learned trial court in the impugned order Annexure-1 of taking both the written statements are set aside. The learned trial court is directed to proceed in the matter as mentioned above. It would be open for the defendant , who has filed an application for the grant of temporary injunction before this court to move a proper application before the learned trial court and in case such application is field by the defendant the learned trial court is expected to consider and decide the same in accordance with law. In the facts and circumstances in the meanwhile the parties are directed to maintain status quo with regard to the property in dispute till the next date before the learned trial court by which time the defendant may move a proper temporary injunction application which if filed shall be considered on merits by the learned trial court. It is made clear that if no such application is filed this order of status quo shall stand vacated automatically. Subject to the above, this writ petition as well as the application No.41118 stand disposed of. (DALIP SINGH),J. Ramchandrkhatri,PS