Land-Dispute Defendants’ Late Written Statement Must Be Taken On Record As They Received No Copies Of The Plaint: J&K HC

The plaintiffs brought a suit seeking a permanent prohibitory injunction concerning land and a private lane.

The defendants filed a joint written statement on 27 April 2023, after which the plaintiffs objected that it was out of time.

The defendants’ application to condone the delay was dismissed by the trial court on 6 December 2023, which reasoned that the defendants knew of the suit through service on defendant No. 4, defendant No. 5’s appearance, and an alleged compromise between the parties.

The defendants challenged that order, contending that summons had not been properly served and that several defendants had never received summons.

Order V, Rule 1 CPC provides for summons requiring a defendant to appear and answer the claim; Rule 2 requires every summons to be accompanied by a copy of the plaint; Rule 9 addresses the manner of delivery or service; Rule 11 requires service on each defendant where there is more than one; and Rule 12 requires service on the defendant personally or on an authorised agent.

Under Order VIII, Rule 1 CPC as applicable in Jammu and Kashmir, a written statement is to be filed within 30 days of service, with the period extendable up to 120 days from service; the defendant forfeits the right to file if it is not filed within that period.

For this period to run, service must include delivery of the plaint; knowledge of the suit alone does not establish proper service.

No judicial precedents were relied upon.

The record showed that defendant No. 4 received only a copy of the interim injunction order, not the summons accompanied by the plaint; the other defendants likewise had no recorded service of the plaint.

The court held that the defendants’ awareness of the suit through negotiations or other circumstances could not substitute for the service required by Order V CPC.

Because the record did not establish that any defendant had received a copy of the plaint before filing the written statement, the 120-day period had not begun to run against them.

The trial court therefore erred in dismissing the application without determining whether proper service had occurred.

It set aside the impugned order and directed that the defendants’ written statement be taken on record, with the suit to proceed in accordance with law.