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2005 DIGILAW 86 (CAL)

MADAN MOHAN DAS v. KARTICK CHANDRA DAS

2005-02-08

JYOTIRMAY BHATTACHARYA

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JYOTIRMAY BHATTACHARYA ( 1 ) IN spite of service of notice, none appears on behalf of the respondents to oppose the prayer of the petitioner at the time when the matter is called on for hearing. ( 2 ) AFFIDAVIT of service filed in Court to from Order of B. Roy, Civil Judge, (Jr. Divn.) First Court, Hooghly, D/- 3-3-2004. day be kept on record. ( 3 ) THIS revisional application is directed against an order being No. 18 dated 3rd march, 2004 passed by the learned Civil judge (Junior Division), 1st Court, Hooghly in Title Suit No. 149 of 2003. ( 4 ) THE defendant No. 1 in a suit for declaration and injunction is the petitioner before this Court. ( 5 ) THE defendant/petitioner appeared in the suit on 11th September, 2003 without summons being served upon him. After entering appearance in the said suit, the said defendant/petitioner prayed for time for filing written statement. However, the said defendant did not file the written statement within the date fixed by the Court and the time was again extended by the Court below for filing written statement. The defendant even did not file the written statement within the extended time. Accordingly, the suit was fixed for ex parte hearing. On the date when the suit was fixed for ex parte hearing, the defendant/petitioner filed the written statement along with an application for extension of time for acceptance of the same with a prayer for taking off the suit from the Board of ex parte hearing on acceptance of the said written statement. ( 6 ) THE. said application of the petitioner was rejected by the learned trial Court on the ground that the extension of time for filing written statement cannot be granted on an application under Section 5 of the limitation Act. However, liberty was given to the defendant to cross-examine the plaintiffs witness in accordance with law. ( 7 ) THIS revisional application is directed against such an order before this Court. ( 8 ) MR. Rameswar Bhattacharya, learned advocate appearing for the defendant/petitioner points out that the written statement was filed by the petitioner on 9-1-2004. Mr. However, liberty was given to the defendant to cross-examine the plaintiffs witness in accordance with law. ( 7 ) THIS revisional application is directed against such an order before this Court. ( 8 ) MR. Rameswar Bhattacharya, learned advocate appearing for the defendant/petitioner points out that the written statement was filed by the petitioner on 9-1-2004. Mr. Bhattacharya by referring to the provision contained in Order 8, Rule 1 of the Code of civil Procedure, submits that under the said provision the defendant is required to file written statement within 30 days from the date of service of summons on him. By referring to the proviso under Order 8, Rule 1 of the Code of Civil Procedure, Mr. Bhattacharya submits that the time for filing written statement as provided under Order 8, Rule 1 of the Code of Civil Procedure can be extended by the Court up to 90 days on recording of the reasons therefor. ( 9 ) MR. Bhattacharya submits that since writ of summons was not served upon the petitioner, the time as prescribed under the said Statute cannot be calculated from the date of his appearance. Mr. Bhattacharya further submits that even assuming that the said time can be calculated from the date of his appearance still then the Court is not powerless to extend the time by invoking its power under Section 148 of the Code of Civil procedure which provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion from time to time, enlarge such period not exceeding 30 days in total even though the period originally fixed or granted may have expired. ( 10 ) IT is further contended by Mr. Bhattacharya that the time-limit which is prescribed in the Code is a procedural law. Accordingly, the substantive right of the petitioner to contest the suit cannot be taken away because for violation of any procedural law. ( 11 ) AFTER hearing Mr. Bhattacharya and after considering the materials on record, I find substance in the submission of Mr. Bhattacharya. I have perused the entire order-sheets annexed to this revisional application. On perusal of the said order sheets, it does not appear to this Court that the writ of summons was ever served upon the petitioner. ( 11 ) AFTER hearing Mr. Bhattacharya and after considering the materials on record, I find substance in the submission of Mr. Bhattacharya. I have perused the entire order-sheets annexed to this revisional application. On perusal of the said order sheets, it does not appear to this Court that the writ of summons was ever served upon the petitioner. ( 12 ) IN such view of the matter, I do not find any justification in refusing the prayer of the petitioner in accepting the written statement which was filed by the petitioner on 9-1-2004. ( 13 ) ACCORDINGLY, the impugned order is set aside and the revisional application stands allowed. The written statement which was filed by the defendant No. 1 /petitioner herein on 9-1-2004 be accepted. ( 14 ) LET the suit be taken off from the board of the ex parte hearing and the learned court below is directed to proceed from that stage in accordance with law. ( 15 ) THE revisional application is, thus, disposed of. ( 15 ) URGENT xerox copy of this order, if applied for, be given to the parties as expeditiously as possible. Revision allowed.