JEET RAJ AND OTHERS vs PIRTHI RAM AND ANOTHER

9
HIGH COURT OF JAMMU, KASHMIR & LADAKH

AT JAMMU

Uploaded on 21.10.2026

CM(M) No. 15/2024



Jeet Raj and others …..Appellant(s)/Petitioner(s)


Through: Mr. Satyajeet, Adv.

vs


Prithi Ram and another .…. Respondent(s)

Through: None.



Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE


ORDER
13.10.2026

1. The petitioners, through the medium of present petition, have challenged order
dated 06.12.2023 passed by the learned Munsiff (Sub Registrar),
Jammu(hereinafter to be referred as the trial court), whereby the application
filed by the petitioners/defendants for condonation of delay in filing the
written statement, has been dismissed. Notice of the instant petition was
issued to the respondents but despite service no one has appeared on their
behalf. Although at one stage, Advocate Sh. Sahil Bavoria had appeared on
behalf of the respondents, but thereafter, he stopped appearing in the case.
2. I have heard learned counsel for the petitioners and I have also perused the
record including the record of the trial court.
3. It appears that the respondents/plaintiffs have filed a suit against the
petitioners/defendants before the learned trial court seeking permanent
Rakesh Kumar
2026.10.16 20:19
I attest to the accuracy and
integrity of this document

prohibitory injunction against the petitioners/defendants restraining them from
encroaching upon the land measuring 08 kanals 11 marlas falling under khasra
No. 252 and also restraining them from encroaching upon the private lane of
the plaintiffs/respondents measuring 9 feet wide towards the land of the
plaintiffs/respondents situated at Village Chak Sadar Desa Singh, Phalian
Mandal, Jammu.
4. A perusal of the record of the trial court would reveal that summons of the suit
was issued to the petitioners/defendants in terms of order dated 04.10.2021
and on the same date, an ex parte interim injunction came to be passed by the
learned trial court in favour of the plaintiffs/respondents and against the
petitioners/defendants. The record shows that the copy of the ex parte interim
injunction dated 04.10.2021 was served upon petitioner/defendant No. 4,
namely, Tarsem Lal. The service of the order was effected upon defendant-
Tarsem Lal on 07.10.2021. It is recorded in the report of the Process Server
that defendant/petitioner No. 4-Tarsem Lal assured that he would inform other
defendants about filing of the suit. So far as summons of the suit issued to the
other defendants are concerned, it appears that the summons were issued to
the petitioners/defendants Nos. 7, 8 and 9 on 02.12.2021 but the same were
returned unserved with the report that the addressees could not be found.
Summons issued to the petitioner/defendant Nos. 2, 3 and 5 were also returned
unserved.
5. The minutes of the proceedings of the trial court would reveal that on
02.11.2021, when the Presiding Officer was on leave, defendant No. 5 is
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shown to have appeared in person and it is also recorded that the defendant
No. 4 has been served.
6. The minutes of the proceedings also reveal that defendant No. 5 again
appeared on 20.04.2022 before the trial court. On 11.10.2022, the learned trial
court issued fresh summons to the defendants except defendant No. 5. It
appears that on 21.01.2023, the defendants put in their appearance before the
trial court through their counsel and on 27.04.2023, they filed a joint written
statement before the court. The minutes of the trial court would reveal that on
16.05.2023, an objection was raised by the counsel for the plaintiffs that the
written statement has been filed beyond the statutory period.
7. On the next date i.e. on 30.05.2023 defendants filed an application seeking
condonation of delay in filing the written statement. In their application, the
defendants pleaded that a compromise was going on between the parties and
in fact, on 25.10.2021, they had entered into a compromise with the plaintiffs
and pursuant to the said compromise, the parties took necessary steps as per
the terms of the compromise. It was pleaded by the defendants that they were
under the impression that the plaintiffs have withdrawn the suit but in month
of February, 2023, when the plaintiffs again started the dispute, they came to
the court and found that the suit is still pending. Thereafter, they engaged a
counsel and filed the written statement.
8. The aforesaid application has been dismissed by the learned trial court in
terms of impugned order dated 06.12.2023, on the ground that the defendants
were knowing about the pendency of the suit as per their own showing as they
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had entered into a compromise with the respondents on 25.10.2021. Thus,
they cannot claim that they had no knowledge about pendency of the suit until
February, 2023. It has been observed by the learned trial court that defendant
No. 4 was served on 07.10.2021 and defendant No. 5 entered his first
appearance on 02.11.2021 and therefore, it can be inferred that all the
defendants had the knowledge about pendency of the suit. In these
circumstances, the written statement filed by them beyond the statutory period
of 120 days from the date of service of the summons, cannot be taken on
record.
9. The defendants have challenged the impugned order on the grounds that no
proper service of the summons of the suit upon the defendants has taken place
in the suit. It has also been contended that defendant Nos. 1, 2, 3, 6, 7, 8 and 9
were never served with the summons. The same is clearly reflected from the
record of the trial court as such, the period of 120 days prescribed under
Proviso to Rule 1 of Order VIII of the Code of Civil Procedure (CPC), as
applicable to the Union Territory of Jammu and Kashmir, would not start to
run against the defendants.
10. In order to determine the issues involved in the present petition, it is necessary
to have a look at the relevant provisions of the CPC. Rule 1 of Order V of the
CPC provides for issuance of summons to the defendant to appear and answer
the claim and to file written statement of his/her defense. Rule 2 of Order V of
the CPC provides that every summons has to be accompanied by a copy of the
plaint. Rule 9 of the Order V of the CPC provides for the manner in which
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summons are to be delivered to a defendant. As per this provision, summons
have to be delivered or sent either to the proper officer to be served or to the
defendant or his/her authorized agent. Rule 11 of Order V of the CPC
provides that where there are more defendants than one, service of summons
shall be made on each defendant along with a copy of the plaint, whereas Rule
12 mandates that service of the summons has to be on defendant in person or
his agent. Proviso to Rule 1 of Order VIII of the CPC as applicable to the
Union Territory of Jammu and Kashmir, mandates that the written statement
has to be presented within a period of 30 days from the date of the service of
the summons and Proviso to Rule 1 mandates that the said period can be
extended up to 120 days from the date of service of the summons upon the
defendant and if the written statement is not filed within the aforesaid period,
the defendant shall forfeit his/her right to file the written statement.
11. With the aforesaid provisions of law in mind, let us now proceed to analyze
the facts of the present case. So far as report of service effected upon the
defendants in respect of interim order dated 04.10.2021 is concerned, it is
reflected that the copy of the said report was furnished to defendant No. 4. It
is not mentioned in the report that copy of the plaint was furnished to
defendant No. 4. In fact, the Process Server has specifically recorded that only
photocopy of the said order has been provided to defendant No. 4. As already
stated, Rule 2 of Order V of the CPC mandates furnishing of copy of the
plaint to the defendant along with the summons. Unless the defendant is
provided with a copy of the plaint, he would not be able to file his written
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statement. Therefore, the service of summons upon a defendant would be
complete only when the summons is accompanied by a copy of the plaint. In
the present case, summons of the suit has not been properly served upon any
of the defendants. Defendant No. 4 has been provided only the copy of interim
order dated 04.10.2021. Neither summon of the suit has been served upon him
nor copy of the plaint has been delivered to him. So far as other defendants are
concerned, they have not even received copy of the interim order nor there is
any report of the Process Server suggesting delivery of the summons upon
them. Thus, none of the defendants has been properly served of the summons
in the suit as the record does not show that any of them has received copy of
the plaint.
12. Merely because the defendants had the knowledge of the pendency of the suit
because of the negotiations that may have taken place between the parties,
does not lead to an inference that they were properly served with the summons
of the suit or that they had received copy of the plaint. In the absence of any
material on record to show that the defendants were furnished copy of the
plaint, at any stage, prior to the filing of their written statement, it cannot be
stated that they were properly served. Thus, the statutory period of 120 days
provided under Proviso to Rule 1 of Order VIII of the CPC would not start to
run against them. It was, therefore, not open to the learned trial court to
presume that the defendants were properly served.
13. From the foregoing discussion, it is clear that the learned trial court, while
passing the impugned order, has not considered the issue as to whether the
CM(M) No. 15/2024 Page 6 of 7

defendants were properly served at any stage and whether copies of the plaint
were ever furnished to them along with summons to enable them to file the
written statement. The impugned order dated 06.12.2023 passed by the
learned trial court is, therefore, not sustainable in law.
14. For all what has been said, analyzed and discussed hereinabove, the present
petition is allowed and impugned order dated 06.12.2023 passed by the
learned trial court is set aside. The written statement filed by the
petitioners/defendants shall be taken on record by the learned trial court,
whereafter further proceedings in the suit, in accordance with law, shall take
place.
15. A copy of this order be sent to the learned trial court for information.

(SANJAY DHAR)
JUDGE

Jammu
13.10.2026
Rakesh PS
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No

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