Civil Revision. No. 5379 of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision. No. 5379 of 2004
Date of decision:10th August, 2009
Jamshed and others
......Petitioners
Versus
Anil Rastogi and others
......Respondents
Before: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. P.R.Yadav, Advocate
for the petitioners.
RAJIVE BHALLA, J.
Prayer in this revision petition is to set aside the order
dated 17.09.2004, passed by the Additional Civil Judge (Senior
Division), Nuh, District Gurgaon, now District Mewat.
The petitioners filed a suit for declaration, in the year
1996. On 31.07.1998, a written statement was filed on behalf of
respondent no. 1, by one Asar Khan, his special power of
attorney holder. On the basis of the pleadings, the trial court
framed issues and called upon the parties to lead evidence.
During the pendency of the suit, respondent no. 1 sold
the suit land to respondents no. 5 to 7, vide registered sale deed
dated 14.06.1996. Respondents no. 5 to 7 filed an application
Civil Revision. No. 5379 of 2004 2
under Order 22 Rule 10 of the Code of Civil Procedure read with
Section 151 for being impleaded as parties. Vide order dated
24.08.2002, this application was allowed and respondents no. 5
to 7 were impleaded as defendants.
After conclusion of the evidence, Anil Rastogi
respondent no. 1, filed an application for placing on record a
fresh written statement, on the plea that inspection of the court
file, had revealed that the original special power of attorney,
which was handed over to his counsel, while filing the written
statement, is not on record. The petitioners, opposed this prayer
by asserting that there is no statutory provision that permits the
filing of a second written statement.
After considering the averments in the application and
the reply filed thereto, the trial court allowed the application by
holding that as there is no difference between the two written
statements, no prejudice would be caused to the petitioners.
Counsel for the petitioners submits, that prejudice
apart, the Code of Civil Procedure does not envisage the filing of
a second written statement, particularly when the defendant
acknowledges the filing of an earlier written statement. The court
below had no jurisdiction to permit respondent no. 1 to file a
fresh written statement.
Despite service, no one has put in appearance on
behalf of the respondents to oppose the prayer made in this
petition.
I have heard counsel for the petitioners, and perused
Civil Revision. No. 5379 of 2004 3
the impugned order.
A perusal of the application, filed by respondent no. 1,
discloses that a written statement was filed, on his behalf, by his
special power of attorney, Asar Khan. A copy of the special
power of attorney is appended with the written statement. The
only ground urged for filing a fresh written statement is that the
original special power of attorney is not traceable and therefore,
has not been placed on record. This assertion, in my considered
opinion did not entitle respondent no. 1 or empower the trial
court to allow the respondent to file a fresh written statement,
even if there is no difference between the averments in the two
written statements. The remedy of respondent no. 1 is to prove
the special power of attorney by producing the original or by
recourse to the provisions of secondary evidence. The filing of
written statements, is governed by the provisions of Order 8 of
the Code of Civil Procedure which do not envisage the filing of a
second written statement. It would be necessary to mention here
that during the pendency of the suit, respondent no. 1 has sold
the suit land to respondents no. 5 to 7 and therefore, has no
subsisting interest in the suit property.
In view of what has been stated hereinabove, as the
trial court committed an error of jurisdiction by allowing
respondent no. 1 to file a second written statement, the revision
petition is allowed, the order dated 17.09.2004, passed by the
Additional Civil Judge (Senior Division), Nuh, District Gurgaon,
now District Mewat, is set aside, with liberty to respondent no. 1,
Civil Revision. No. 5379 of 2004 4
to prove the special power of attorney, if deemed appropriate, in
accordance with law.
Parties are directed to appear before the trial court on
22.09.2009, for further proceedings, if not already concluded.
[RAJIVE BHALLA]
JUDGE
10th August, 2009
SKaushik