Mini Sidhu (Smt.) Vs. the Addl. Civil Judge (Jr.Div.) No. 2 and ors. - Court Judgment

Excerpt:
- dalip singh, j.1. heard learned counsel for the petitioner.2. the petitioner, in this writ petition, has challenged the order dated 01.05.2007 by which the application submitted by the plaintiff-petitioner under order 8 rule 1 c.p.c. for closing the defence of the defendant and ordering for striking out from the record the written statement filed by the defendant has been rejected.3. it is not in dispute that vide annexure-2 ordersheet dated 03.06.2004, the court had granted adjournment to the defendant for filing the written statement and fixed the date as 12.08.2004. the ordersheet dated 12.08.2004 reads as follows:12-8-2004 odqyk; mi- a izfroknh la- 1 dk tckc nkok iwoz es is'k gs a oklrs tokc nkok izfroknh la- 2 fnukad 30-9-2004 dks is'k gksa4. the said ordersheet is available as annexure-3 on record. it is not in dispute that the order dated 03.06.2004 (annexure-2) by which the time was granted to the defendant no. 1 for filing the written statement by the learned trial court was not challenged by the petitioner. the order dated 12.08.2004 quoted hereinabove, by which it is recorded that the written statement of the defendant no. 1 which has been filed has been taken on record was also not challenged by the petitioner.5. it is only by means of the application under order 8 rule 1 c.p.c. filed on 22.07.2006 by the plaintiff-petitioner after two years that an objection was raised by the petitioner before the learned trial court that the written statement of the defendant no. 1 should not be considered as it has not been filed for a period of three years and his defence should be closed.6. by the impugned order dated 01.05.2007, the learned trial court taking into consideration the ordersheet dated 12.08.2004 has recorded that the written statement has already been filed and accordingly the application submitted by the petitioner has been dismissed as there was no delay of three years as alleged by the plaintiff/petitioner and the same has already been filed on 12.08.2004.7. learned counsel for the petitioner sought to contend that he is challenging the order dated 03.06.2004 and 12.08.2004 by means of the present writ petition.8. so far as the above submission of the learned counsel for the petitioner is concerned, it may be stated that the challenge to the aforesaid order dated 03.06.2004 in the year 2009 by means of the present writ petition filed on 03.02.2009 is highly belated. even otherwise, the proceedings dated 12.08.2004 were within in the knowledge of the petitioner as the attendance of both the parties i.e., the plaintiff and the defendant is recorded in the said ordersheet and the petitioner cannot be permitted to contend counter to the recorded ordersheet in absence of any affidavit of the party or the counsel appearing before the court below.accordingly, the writ petition is dismissed summarily.