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2005 DIGILAW 155 (CAL)

BHAGIRATH LOHAR v. SREEMATYA SANDHYA MALAKAR

2005-03-07

JYOTIRMAY BHATTACHARYA

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J. BHATTACHARYA, J. ( 1 ) THIS application under Article 227 of the Constitution of India is directed against an order dated 24th September, 2004 passed by the learned Civil Judge (Junior Division), 1st Court, Chinsurah, Hooghly in Title Suit No. 22 of 2004 rejecting the petitioner's prayer for setting aside the order of ex parte hearing of the suit on acceptance of written statement filed by the defendant beyond the time allowed to him by the learned Trial Court. ( 2 ) THE petitioner in this revisional application is the defendant in a suit for eviction of licensee and for recovery of damage and injunction. ( 3 ) JUNE 8, 2004 was fixed by the learned Trial Court for filing the written statement by the defendant. On that date, the written statement could not be filed by the defendant as the learned advocate who was engaged by the defendant in the Court below not only returned the brief on account of his personal inconvenience but also retired from the case on the very same date i. e. June 8, 2004 which was fixed for filing the written statement in the Court below. ( 4 ) ACCORDINGLY, the defendant/petitioner engaged another lawyer who moved a petition before the Court below praying for time for filing written statement on the aforesaid ground. ( 5 ) THE learned Trial Judge rejected the defendant/petitioner's said prayer and fixed the suit for ex parte hearing on July 3, 2004. Thereafter on the date when the suit was fixed for ex parte hearing, i. e. on July 3, 2004, the defendant/petitioner filed his written statement and prayed for setting aside the order of ex parte hearing on acceptance of the said written statement filed by him. ( 6 ) THE said prayer of the defendant/petitioner was rejected by the learned Trial Court by the order impugned on the ground that in view of provision as contained in Order 8 Rule 1 of the Code of Civil Procedure, the Court cannot extend the time for filing written statement beyond 90 days from the date of receipt of the summons. ( 7 ) SUCH an order has been challenged in this revisional application by the defendant/petitioner herein. ( 8 ) HEARD the learned advocates for the respective parties. Considered the materials on record. ( 7 ) SUCH an order has been challenged in this revisional application by the defendant/petitioner herein. ( 8 ) HEARD the learned advocates for the respective parties. Considered the materials on record. ( 9 ) ON consideration of the materials on record as well as the provision for enlargement of time as contained in section 148 of the Code of Civil Procedure, this Court holds that the time limit which is fixed for filing written statement under the provision of Order 8 Rule 1 of the Code of Civil Procedure can be enlarged by the Court under section 148 of the Civil Procedure Code, in its discretion for a period not exceeding 30 days in total. ( 10 ) THAT apart, the power of the Court to accept written statement filed by the defendant even after conclusion of ex parte hearing of the suit but before delivery of judgment under order VIII Rule 10 of the Civil Procedure Code has been recognised by this Court in the case of Ramesh Chandra v. Corporation of Calcutta, reported in AIR 1987 Calcutta 111. ( 11 ) IN the instant case, it appears that the written statement was filed even before the expiry of maximum period, which could have been granted by the Court below by way of extension in exercise of its power under section 148 of the Code of Civil Procedure. As such, the learned trial Judge ought to have accepted the written statement filed by the defendant on the date of ex parte hearing of the suit by invoking its power either under section 148 of the Code of Civil Procedure or under Order VIII Rule 10 of the Civil Procedure Code, as the reason for not filing the written statement within the prescribed period was beyond the control of the petitioner. ( 12 ) IN such view of the matter, I find that the order impugned cannot be sustained. ( 13 ) ACCORDINGLY, the impugned order is set aside. The written statement which was filed by the defendant in the said suit is hereby accepted and the order for ex parte hearing of the said suit is set aside. The revisional application is, thus, allowed. Affidavit of service filed in Court today be kept on record. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible. Application allowed.