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Gurudwara Bei Sehjal Babehar v/s Gurparkash & Others

    CMPMO No. 108 of 2018

    Decided On, 11 July 2018

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE AJAY MOHAN GOEL

    For the Petitioner: R.P. Singh, Advocate. For the Respondents: Ajay Sharma, M/s. Amit Jamwal, Kishor Pundir, Advocates.



Judgment Text

1. By way of this petition, challenge has been laid to the order dated 16.1.2018 passed by the Court of learned Civil Judge, Court No. II, Amb, District Una in Civil Suit No. 171 of 2017 titled as Gurudwara Bei Sahjal v. Guruprakash and others, vide which an application filed before it purportedly on behalf of respondents No. 1 to 3 for extending the time to file written statement has been allowed.

2. Mr. Singh learned counsel for the petitioner has argued that the impugned order is per se not sustainable in the eyes of law, because while passing the said order, learned trial court erred in not appreciating that neither the application

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filed before it, which is at page 19 of the paper book (Annexure P-5) was a proper application, as the same was neither signed by any of the applicants, nor was it supported by an affidavit, nor the contents therein revealed that there was any cogent explanation in the application as to why the written statement could not have been filed by the applicants within time, as is envisaged in the Code of Civil Procedure. While making this submission, Mr. Singh has drawn the attention of this Court to Annexure P-4, which is copy of the Court notice served upon respondents No. 1 to 3, which demonstrates that said respondents/defendants were duly served on 16.9.2017 in the suit. Mr. Singh has further argued that the impugned order otherwise is also not sustainable in the eyes of law, as the same is a cryptic and a non speaking order, which neither deals with the contention so made in the application nor any reasoning has been assigned as to why the said application was allowed. Further grievance raised by Mr. Singh is that the application was allowed on the same date on which it was preferred by the applicant without affording any opportunity to the present petitioner to respond to the same.

3. Mr. Sharma learned counsel for respondents on the other hand has submitted that there is no infirmity with the impugned order as it was the discretion vested before the learned trial court to have had allowed any such application preferred before it and the application was allowed by the learned trial court in the interest of justice.

4. I have heard learned counsel for the parties and have also gone through the documents appended with the present petition.

5. It is not in dispute that respondents No. 1 to 3, who are defendants No. 1 to 3 before the learned trial court were duly served on 16.9.2017. It is also a matter of record that since then several opportunities were given to the defendants to file their written statement, however, no written statement was filed. It is also a matter of record that on 16.1.2018 an application was filed for extension of time under Section 148 read with Section 151 of CPC through learned counsel by one applicant namely, Guruprakash. The contents of this application are reproduced hereinbelow:-

"1. That abovementioned case is pending before this Hon'ble Court and is fixed for filing W.S for today.

2. That for filing written statement, defendant needs old revenue record pertaining to year 1930ies and onwards and for that he had applied in various departments of District and Tehsil revenue offices. The above said record is very old and also in different languages which needs to be translated into court language.

3. That due to the reason mentioned in para No. 2 of this application, the defdt. is still unable to file the written statement and needs sufficient time to file the W.S.

It is, therefore, humbly prayed that the applicant/defdft. May kindly be given some more time to file the written statement in the interest of justice."

6. Incidentally, this application apparently has neither been signed by the applicant though it contains the signature of the learned counsel who moved the application nor the same is supported by an affidavit. This application was allowed by the learned trial court vide impugned order dated 16.1.2018 in the following terms:

"Application for extending time to file written statement U/S 148 CPC filed, considered and allowed. Be put up for filing written statement on or before 26.2.2018."

7. In my considered view, the order impugned before this Court vide which the application filed in the name of applicant Guruprakash for extension of time for filing written statement was allowed by the learned trial court is not sustainable in the eyes of law. Mr. Singh learned counsel for the petitioner is correct in his submission that this order was passed without affording any opportunity of filing reply to the plaintiffs, which is evident from the fact that the application dated 16.1.2018 was disposed of on the same day and the order does not mention that opportunity of reply was given to the non applicants, but they chose not to file any reply. The contention of Mr. Singh that the order is non speaking and cryptic is also borne out from the impugned order as neither there is any mention in the impugned order of the facts of the application nor any reasoning whatsoever has been assigned therein as to what weighed with the learned trial court while allowing the application. Time and again, Hon'ble Supreme Court as also Hon'ble High Courts have been reiterating that judicial orders are required to be both speaking as also reasoned orders. The rationale behind this is that content of the order itself should be self explanatory as to why the conclusion arrived at in the order has been arrived. Besides this, a non speaking order perhaps also is an indicator of non application of mind by the Court concerned while passing the impugned order.

In this view of the matter, this petition is allowed and impugned order dated 16.1.2018 is quashed and set aside with further direction to the learned court below to decide the application filed by the applicant Guruprakash after affording opportunity to file reply to the application by the non applicants. As far as the contention of Mr. Singh that the application per se is not maintainable, as neither it bears any signatures of the applicant nor it supported by an affidavit is concerned, this court is not making any observation on the same because this objection can be taken by the present petitioner in the reply and it is for the learned trial court to adjudicate on the same.

Petition stands disposed of in above terms. The parties through their learned counsel are directed to appear before the learned trial court on 6.8.2018.
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