1 7 S.B. CIVIL WRIT PETITION NO.7257/2007. Shiv Kumar & Anr. Vs. Prahlad Ray & Ors. Date of Order :: 5th February 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Sandeep Sarupariya, for the petitioners. ..... BY THE COURT: Having heard learned counsel for the petitioners, and having perused the material placed on record of this petition and so also the material placed for perusal by the learned counsel during the course of submissions, this Court is clearly of opinion that not only this writ petition seeking to challenge the order dated 10.04.2007 as passed by the learned trial court taking the written statement on record after allowing costs of Rs.500/- to the petitioners remains bereft of substance; but further, by taking up this frivolous petition, the petitioners have amply demonstrated that the trial court has committed error in allowing them the amount of costs. Thus, the order dated 10.04.2007, so far taking the written statement on record is concerned, calls for no interference and deserves to be affirmed but at the same time, other part of the order allowing costs to the petitioners deserves to be modified and such costs ought to go to the concerned District Legal Services Authority. From the material as placed by the learned counsel for perusal, the relevant facts and aspects are that the dispute 2 between the parties essentially relates to a business in the name and style of ‘M/s. Deepak Hair Styler’ being carried at the premises situated at Girls College Road, Bhilwara. The respondent No.1 herein, Shri Prahlad Ray, has filed a suit for perpetual injunction [CO No. 1/1998 (old No. 159/1996)] on 10.09.1996 in the court of Civil Judge (Junior Division) (East), Bhilwara against the present petitioners, S/Shri Shiv Kumar and Mool Chand, essentially on the submissions that he (the said plaintiff Prahlad Ray) is the owner of the said business being carried on in the aforesaid premises taken on rent from one Jalam Singh. It has been alleged that the defendants (the present petitioners) were earlier working in the employment of the plaintiff in the said business and they were removed out about eight years back; and thereafter, they had no relation with the business in question. The cause of action for the said suit has been stated in the manner that on 09.09.1996, the defendants reached the shop in question, threatened the plaintiff to vacate the shop, and entered into altercations. The plaintiff has prayed for the relief essentially of perpetual injunction that the defendants may not interfere with his carrying on business in the said shop and may not try to dispossess him. It appears that the present petitioners Shiv Kumar and Mool Chand filed another suit [CO No. 5/1998 (old No. 163/1996)]on 12.09.1996 in the same court of Civil Judge (Junior Division) 3 (East), Bhilwara arraying the said Shri Prahlad Ray as defendant No.1 and his sons S/Shri Pyare Lal and Vinod Kumar as defendants Nos. 2 and 3. With reference to the same shop, the same business carried in the name and style of M/s. Deepak Hair Styler, and the same landlord Jalam Singh the present petitioners (plaintiffs of the subsequent suit) have alleged themselves being the owners of the business in question and have levelled allegations against the defendants of attempting to forcibly take over the business and interfering in the petitioner’s carrying on the said business and has prayed for the decree of perpetual injunction against any obstruction in the business and against forcible dispossession. Thus, in sum and substance, both the suits are running counter to each other with the respective parties claiming right and entitlement to the business in question. It appears that both the suits now stand transferred to the court of Additional Civil Judge (Junior Division) No. 2, Bhilwara; and the learned trial court by its order dated 30.04.2005, while dealing with an application under Section 10 of the Code of Civil Procedure moved by the present respondents No. 1, 2 and 3, directed consolidation of the later suit (i.e., the suit filed by the present petitioners) with the earlier one. It is also noticed that the present petitioners, who are defendants in the suit previously instituted suit had filed their written statement on or about 14.10.1999. 4 In the present suit numbered 5/1998 (old No.163/1996), the defendants filed an application on 08.08.2006 for taking their written statement on record with the submissions that the learned trial court directed filing of the written statement on 16.07.2005; that the defendant Prahlad Ray met with an accident and could not contact his lawyer and could not file written statement for being bed-ridden and has returned only in the month of July 2006 from Ahmedabad after taking treatment. It was also stated that the suit remains consolidated with the other suit numbered 1/1998 (old No. 159/1996) and, therefore, there was no alteration in the stage of the suit and none of the rights of the plaintiffs would be affected. The application was put to contest by the present petitioners with their reply that the reasons as stated by the defendants were only of pretext; that in suit No.1/1998 the matter was pending for plaintiffs' evidence and therein last opportunity was granted to Prahlad Ray for leading evidence and when the evidence was likely to be closed, such baseless application had been moved. It was also stated that the matters having been consolidated, the written statement could not be taken on record and it was emphasized that in any case the written statement could not be taken on record after 11 years. The learned trial court, by its impugned order dated 10.04.2007, has rejected the objections as raised by the present petitioners with reference to the order dated 30.04.2005 for 5 consolidating both the suits. The learned trial court has also observed that the matter relates to the rights in the property and it is in the interest of justice to take into consideration the stand of the defendants. The learned trial court has also observed that earlier in this suit, the plaintiffs had never raised any objection about non-filing of the written statement. However, in the circumstances of the case, the learned trial court has considered it appropriate to impose costs on the defendants at Rs.500/- and has, accordingly, ordered taking of the written statement on record upon payment of costs of Rs.500/- by the defendants. Seeking to challenge the order dated 10.04.2007, this writ petition has been filed on 29.10.2007. Learned counsel Mr. Sandeep Sarupariya appearing for the petitioners contended that the learned trial court has not taken the substance of the matter into comprehension properly and has taken on record the written statement filed after about 11 years without any cause or justification on the part of the defendants for such extra-ordinary delay. Learned counsel submitted that the basic predicament of the petitioners is that while the other suit filed by the defendant No.1, i.e., suit No.1/1998 (159/1996) has already registered progress and is pending at plaintiff's evidence stage and the present suit had simply remained attached with the said earlier suit but now, by permitting written statement in this later suit filed by the petitioners complications would arise, the order of 6 consolidation as made earlier by the learned trial court would be rendered redundant, and even the proceedings in both the suits would be relegated to the initial stage; and, according to the learned counsel, the trial court was not justified in permitting written statement in this case and in not proceeding with the consolidated trial as already ordered. The submissions as made by the learned counsel for the petitioners are neither of any substance nor of any relevance. It is apparent from a bare look at the two plaints that the two suits are essentially in the nature of cross-cases whereby each of the party is claiming right and entitlement over the business and the premises in question with allegations of interference by the other one. The learned trial court was perfectly justified in consolidating the trial of the two suits and has rightly ordered that the present suit filed by the petitioners, the subsequent one, shall remain consolidated with the earlier suit filed by Shri Prahlad Ray, the defendant No.1 of the present suit. So far filing of the written statement in the present suit of the petitioners is concerned, the defendants have stated in their application (Annex.1) that they were directed to file written statement on 16.07.2005. Copy of such order dated 16.07.2005 has not been placed on record nor the said statement as made by the defendants was put to contention before the learned trial court that there was no such order made on 16.07.2005. Learned counsel for the petitioners is 7 also not in possession of the copy of the order dated 16.07.2005 but only stated that the order sheets in the petitioners' suit have not been drawn after passing of the consolidation order. However, learned counsel submitted that the only indication available with him is that in the order of consolidation as passed on 30.04.2005, the learned trial court granted time to the defendants for filing written statement and adjourned the matter to 18.07.2005. Be that as it may, it is apparent and the fact remains undeniable that untill the month of July 2005, the learned trial court had granted time to the defendants to file written statement. The defendant No.1 Prahlad Ray thereafter stated of having met with an accident and having remained confined to bed and having returned from Ahmedabad after taking treatment only in the month of July 2006. The petitioners in their reply to the application though have stated denial of such facts but have also pointed out that the other suit filed by Prahlad Ray was pending for plaintiff's evidence and despite several opportunities, he has failed to lead evidence. The indications are, thus, available on record that the defendant of the present suit (plaintiff of the earlier suit) was not intentionally avoiding to file written statement but was not taking part in the proceedings for quite some time. In any case, when the two suits stand consolidated for trial and are essentially in the nature of cross-cases, it is obviously in the interest of justice that written statement is permitted to be 8 placed on the record of the subsequent suit as filed by the present petitioners. Such procedure would only be conducive of requirements of effective determination of all the questions involved in the litigation and the order as made by the learned trial court, therefore, remains justified. The submissions that any complication would arise in the matter or that the order of consolidation itself might be rendered redundant or that there would be further delay in the matter, remain fundamentally baseless for the simple reason that even while passing the impugned order dated 10.04.2007, the learned trial court has not varied or altered its earlier order of consolidation of the trial of the two suits. This Court is clearly of opinion that the rules of procedure are intended to subserve the cause of justice and are intended to be used for the purpose of effectual determination of the real questions in controversy between the parties after affording them fullest opportunity to put their case before the court in accordance with law. In furtherance of such objectives, if the learned trial court has considered it appropriate to take the written statement as filed by the defendants on record, such exercise of jurisdiction remains unexceptionable. Looking to the nature of controversy, it cannot be said that the present defendants (including the plaintiff of the earlier suit) would at all be interested in avoiding to file written statement. Significantly, the essentials of their case already stand 9 pleaded before the court in the form of plaint averments of the previously instituted suit. The learned trial court has properly taken into comprehension the subject matter of litigation and so also the requirements of the rules of procedure and the impugned order cannot be said to be unjustified or disclosing any error apparent on the face of the record. With amendment to the Code of Civil Procedure by the Amendment Act of the year 1999, particularly with alterations in the scheme and operation of Section 115 of the Code of Civil Procedure, interference under Article 227 of the Constitution of India is, sparingly, considered in the matters relating to the orders passed by the subordinate courts during the course of a civil litigation in such kind of cases where the impugned order might lead to substantial failure of justice or to such injury that could be said to be irreparable one to a party to a litigation; or the matters of the like nature. Having regard to the overall facts and circumstances, the exercise of jurisdiction in the present case, of taking written statement on record upon payment of costs, cannot be said to be leading to any injustice what to say substantial failure of justice. However, by putting challenge to a reasonable and justified order passed by the learned trial court, the petitioners have amply demonstrated that the trial court has, of course, committed an error in allowing them costs of Rs.500/- while taking the written statement on record. 10 This Court, while rejecting another such frivolous writ petition, being CWP No.732/2008 (Shankar Lal & Anr. Vs. Additional District Judge, Sujangarh & Anr.) on 01.02.2008 has observed and held,- “It is to be imbibed that rules of procedure are intended to subserve the cause of justice and any order made during the course of litigation pertaining to procedure that facilitates decision of real matter in issue on merits, and of extending opportunity to a party to place his case before the court, if not prohibited by law, ordinarily does not call for interference. After amendment to the Code of Civil Procedure by the Amendment Act of 1999 and alteration of the provisions of Section 115 CPC, the writ jurisdiction of this Court particularly under Article 227 of the Constitution of India is, sparingly, considered for application in the cases where the order impugned would result in manifest failure of justice or of the situation like nature but and however, such jurisdiction is not meant to provide an opportunity to any litigant to suggest a proposition that is in opposition to the requirements of the decision of a lis by the courts on merits after affording fullest opportunity of hearing to the parties; or to somehow create spokes in progress of the litigation. In the overall circumstances of the case, this Court is satisfied that the petitioners do not deserve to be allowed the amount of costs of Rs.2,000/- as imposed by the learned trial court; and such amount of costs should go in legal aid.” In the present case too, having regard to the overall facts and circumstances, this court is clearly of opinion that the defendants are of course required to be put on the terms of costs for delay in fling the written statement but at the same time, such costs ought to go to the concerned District Legal Services Authority and not to the petitioners. 11 Accordingly, while this writ petition is rejected, the order passed by the learned trial court on 10.04.2007 to the extent it is in favour of the petitioners allowing them the amount of costs of Rs.500/- is modified in the manner that such amount of costs shall be deposited with the concerned District Legal Services Authority. If the amount of costs has being paid by the defendants and received by the petitioners, they shall deposit the same with the concerned District Legal Services Authority; and else, it shall be required of the defendants to deposit the same with the District Legal Services Authority. A copy of this order be sent to the trial court. (DINESH MAHESHWARI), J. Mohan/