PATNA, India, Oct. 3 -- Patna High Court issued the following judgment on Sept. 3:
The present civil miscellaneous has been filed against the order dated 26.04.2018 passed by learned Subordinate Judge-III, Danapur in Title Suit No. 89 of 1986 whereby and whereunder the petition dated 02.07.2014 for acceptance of additional written statement was rejected.
02. Briefly stated, facts of the case are that the petitioner is one of the defendants in a suit filed by respondents 1 st set bearing Title Suit No. 89 of 1986. The suit has been filed against Kewala Kuer and Inder Singh, the parents of the petitioner, for specific performance of contract on the basis of agreement for sale dated 12.04.1983 said to be executed by Kewala Kuer in favour of the plaintiff. Kewala Kuer, the original defendant no. 1 died on 30.04.1993 and a petition for substitution of her heirs/legal representatives was filed on 15.07.1993 which was allowed vide order dated 31.05.1994/01.08.1994 directing the plaintiffs to file requisites for appearance of substituted defendant fixing 25.08.1994 as the next date in the said suit. It further appears that a vakalatnama has been filed on behalf of the petitioner, his brothers and sister who were the legal representatives of Kewala Kuer with a petition to treat the written statement filed by Kewala Kuer and Inder Singh as written statement of the substituted defendants. The matter proceeded and the evidence of the plaintiffs was closed and the matter had been coming up for the recording of the evidence of the defendants. At this stage on 02.07.2014, the petitioner who is defendant no. 1(B) before the learned trial court filed an application along with an additional written statement for taking the additional written statement of the petitioner on record. It also transpires that 04.03.2016 was the date fixed in the suit for hearing on the petition dated 02.07.2014 filed by the petitioner and rejoinders filed by the plaintiffs and defendant no. 1(A). A time petition was filed on behalf of the petitioner seeking adjournment due to engagement of his counsel in some other Court but the petition dated 02.07.2014 was rejected instead of rejecting the adjournment petition. Thereafter, the petitioner on 03.05.2016 filed another application to hear the petitioner on his petition dated 02.07.2014 which had been rejected on 04.03.2016 as not pressed. The learned trial court, after hearing the petitioner rejected the petition dated 03.05.2016 by its order dated 17.08.2016 with a liberty to the petitioner to file a fresh petition. Thereafter, the petitioner on 29.09.2016 filed a fresh petition with prayer to recall the order dated 04.03.2016 and accept the additional written stated dated 02.07.2014. This application was dismissed by the learned trial court vide order dated 26.04.2018 which is under challenge before this Court.
03. Learned counsel appearing on behalf of the petitioner submitted that the impugned order is not sustainable and the same has been passed in total disregard of the facts of the case. The mother of the petitioner, who was the original defendant no. 1, died on 30.04.1993 leaving behind her three sons and one daughter but the summons issued upon the substituted heirs was not served on the petitioner though it is stated that petitioner appeared in the case on 25.08.1994 as vakalatnama has been filed on behalf of the petitioner and other substituted heirs, this presumption is not correct as petitioner had no knowledge or information about pendency of Title Suit No. 89 of 1986 prior to 02.07.2014. The petitioner did not execute any vakalatnama in favour of Sri B. Chaudhary, Advocate and he has not instructed him to file any petition on his behalf for adopting the written statement filed by his mother. This fact becomes clear from the petition dated 25.08.1994 purported to have been filed jointly on behalf of the petitioner, his two brother and sister as the said petition does not bear the signature of any of the petitioners. Learned counsel further submitted that perhaps, the brother of the petitioner namely Shailesh Kumar Sinha, misused the signature of the petitioner which he had obtained on a blank vakalatnama and he has come in collusion with the plaintiffs.
The rest of the document can be viewed at https://patnahighcourt.gov.in/viewjudgment/NDQjMTEwMCMyMDE4IzEjTg==-VAL4o4iURjI=
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