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2005 DIGILAW 522 (ORI)

BHABATOSH SINHA v. PRARA SINHA

2005-09-06

A.S.NAIDU

body2005
( 1 ) DEFENDANT No. 1 in Civil Suit no. 375 of 2002 pending in the Court of Ad hoc Additional District Judge, Fast Track court No. 1, Cuttack has filed this writ application challenging the order dated 4th november, 2004, passed by the Court below rejecting the Written Statement filed by the said defendant on the ground that the same was filed much beyond the time stipulated under Order 8, Rule 1 of the Civil Procedure Code (in short 'c. P. C. ' ). From the order sheet of the suit it appears that the notice was served upon the defendants fixing 20-1-2003 as the date of appearance. The petitioner appeared on the said date and filed a petition praying to grant some time to file written statement. The Court on being satisfied that there was sufficient grounds, granted time to file written statement. Thereafter on several other subsequent dates defendant No. 1 filed petitions for time to file written statement on the grounds mentioned therein. The Court on being satisfied that there were sufficient grounds, granted time to the petitioner to file written statement by 12-10-2004 and on the said date the defendant No. 1 filed written statement. Thereafter a petition was filed by the plaintiff with prayer to reject the written statement on the ground that the same was filed much beyond the time mandatorily stipulated under order 8, Rule 1 of the C. P. C. The Court below after hearing parties by the impugned order held that resorting to inherent power, extending time to file written statement beyond the time stipulated under Order 8, Rule 1 of the C. P. C. is not permissible in view of the specific provision and the time granted by the Court to file written statement could not be sustained and accordingly refused to accept the written statement filed by the petitioner. The said conclusion was arrived on the ground that if there is a specific provision to deal with a contingency, inherent power cannot be exercised. ( 2 ) ACCORDING to defendant-No. 1-peti-tioner the time stipulated under Order 8, rule 1 of the C. P. C. cannot be treated as an iron tight jacket. The Court if satisfied that there are sufficient reasons, can extend the time for filing the written statement, as has been done in the present case. ( 2 ) ACCORDING to defendant-No. 1-peti-tioner the time stipulated under Order 8, rule 1 of the C. P. C. cannot be treated as an iron tight jacket. The Court if satisfied that there are sufficient reasons, can extend the time for filing the written statement, as has been done in the present case. That apart the Court having granted time, on being satisfied that there were sufficient grounds could not subsequently hold that the orders were not sustainable, and refuse to accept the written statement filed within the time granted by it. ( 3 ) MR. A. K. Mohapatra, learned counsel for the plaintiff-opposite party No. 1, on the other hand forcefully submitted that Court has no jurisdiction to grant time in exercise of inherent power when there is clear provision prescribed under the Civil Procedure code. According to Mr. Mohapatra the provision under Order 8, rule 1 of the CPC being mandatory, the petitions filed for time by defendant No. 1 and orders granting him time by the Court beyond the time prescribed under Order 8, Rule 1 of the CPC are contrary to the said mandatory provision and as such non est in the eye of law. Mr. Mohapatra further submits that the impugned order is free from any infirmity and it is a fit case where the writ application should be dismissed. ( 4 ) I have heard the leaned counsel for the parties at length. I have also perused the different orders passed by the Court below in the suit. This Court in the case of krishna Chandra Sahoo v. Shyamsundar sahpo reported in 2004 (1) Orissa LR 104 and in the case of Girish Chandra Ray v. Umakanta Mohanty reported in 2005 (1)CLR 1 has clearly held that the time stipulated under Order 8, Rule 1 of the CPC is not an iron tight jacket and in given cases if the Court is satisfied that there are valid grounds and reasons, it can extend time to file written statement. The same view is also expressed by the Supreme Court in the case of Kailash v. Nanhku reported in 2005 (4)SCC 480 : ( AIR 2005 SC 2441 ). ( 5 ) IN view of the aforesaid clear and authoritative pronouncements, this Court feels that Court has enough power under Section 148 of the CPC to enlarge time if satisfied by the reasons assigned. ( 5 ) IN view of the aforesaid clear and authoritative pronouncements, this Court feels that Court has enough power under Section 148 of the CPC to enlarge time if satisfied by the reasons assigned. Law is well settled that if a Court has power only by use of a wrong nomenclature in the petition such power cannot be taken away. Therefore, the court below has acted illegally and with material irregularity in holding that it had no power to enlarge time for filing written statement. The Court having extended the time for filing written statement on being satisfied that there were valid reasons and the written statement having been filed within the extended period, cannot back out and say that the time was granted without any jurisdiction. If such would be the interpretation, then there will be no sanctity to the orders passed by the Court. In the aforesaid scenario this Court has no hesitation to quash the impugned order, and direct accordingly. The Court below is directed to accept the written statement said to have been filed by the defendant No. 1 subject to payment of Rs. 1000/- (Rupees one thousand) as cost, which shall be paid to Mr. Mohapatra within four weeks hence and receipt thereof filed before it. The writ application is accordingly allowed. Application allowed. .