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2006 DIGILAW 665 (CAL)

AJIT KUMAR GHOSH v. SETH KARAM CHAND

2006-10-20

SOUMITRA SEN

body2006
Before Mr. Justice Soumitra Sen ( 1 ) NO one has appeared on behalf of the opposite party. ( 2 ) THIS application is directed against an order dated 9th of november, 2005 whereby the learned Court had allowed the opposite party to file the written statement. Under normal circumstances such order is not interfered with but the facts are rather compelling. ( 3 ) THE suit was filed by the petitioner on 11th of June, 2001 and on the same date an application for injunction was filed and an ad-interim order of injunction was also passed. The opposite party being the defendant received copy of the injunction order along with copy of the application of injunction on 19th of June, 2001. ( 4 ) THE writ of summons along with a copy of the plaint was served on the opposite party on 7th of September, 2001. The opposite party entered appearance and filled Vakalatnama through his Advocate on 29th of November, 2001. On that date an application was made praying for time to file written statement. From August 2002 till the time the written statement was allowed to be filed, several orders have been passed by the learned Court allowing time to the opposite party to file written statement as a 'last chance'. It appears to me that the learned Court has extended the meaning of the expression 'last chance' to an indefinite period. ( 5 ) THE application filed by the opposite party praying for time to file written statement reveals that the reasons to pray for time was a pending application filed before this Court being C. O. No. 2442 of 2002 which was allegedly filed against the order of injunction passed by the learned Court. ( 6 ) THE petitioner submits that the number of the case pending before this Court being C. O. No. 2442 of 2002 given in the application filed by the opposite party praying for extension of time was an incorrect number. According to the petitioner such incorrect number has boon given deliberately so as to mislead the petitioner from tracing out the actual matter which was in fact F. M. A. T. No. 2442 of 2002. It is submitted on behalf of the petitioner that the said appeal has not yet been admitted. According to the petitioner such incorrect number has boon given deliberately so as to mislead the petitioner from tracing out the actual matter which was in fact F. M. A. T. No. 2442 of 2002. It is submitted on behalf of the petitioner that the said appeal has not yet been admitted. Without going into the question as to whether the number given by the opposite party was deliberately incorrect or was a bona fide mistake, it appears to me that the pendency of a case filed before this Court by itself could not have been a ground to grant extension of time to file written statement. Since there was no order for stay of proceeding, it was a duty to cast upon the learned Court to proceed with the hearing of the suit in accordance with law. I see no reason as to why four years time should be granted to the defendant to file written statement, under any circumstances, when admittedly the proceedings pending before the learned Court was not stayed. ( 7 ) IT appears from the averments contained in the various affidavits filed by the parties that the opposite party has not denied with any conviction that he was not aware of the several orders passed by the learned Court allowing him 'last chance' to file the written statement. ( 8 ) THE amended provision of Section 148 of the Civil Procedure code allows the Court to enlarge the time not exceeding thirty days In total. But in the instant case repeated 'last chance' has been given whereby the time to file written statement in fact extended over a period of four years. Showing mercy or being benevolent by a Court should not be at the cost expenses and prejudice to the other side. The amendment which have been made in the Civil Procedure Code from time to time restricting the time to carry out certain duties have been engrafted in the statute to shorten the time of litigation. In this country litigations are notoriously, prolonged and are keept pending for years together. In the present context when large number of litigations are pending adjudication before the Court, in my opinion, it is the duty of the Court to be more proactive and attempts should be made to enure that the time of litigation is shorted and the litigations are disposed of at the earliest. In the present context when large number of litigations are pending adjudication before the Court, in my opinion, it is the duty of the Court to be more proactive and attempts should be made to enure that the time of litigation is shorted and the litigations are disposed of at the earliest. ( 9 ) TO allow time to file written statement after four years from filing of the suit, in my opinion, is a travesty of justice. ( 10 ) THE opposite party has sought to take a duel stand. On one hand, the opposite party has contended that he had engaged the same advocate who appeared before the learned Court as well as before this Court to conduct his litigation but at the same time has sought to put the entire blame on the learned Advocate. Since the opposite party was aware of the several orders passed by the learned Court allowing him 'last chance', and since he has himself signed an application praying for extension of time to file written statement, I am of the firm opinion that there has been deliberate laches on the part of the opposite party which cannot be condoned. Moreover, as I have already indicated that the ground given seeking extension to time to file written statement is not bona fide. The pendency of the proceeding before this Court arising out of an ad-Interim order if at all is of no consequence and is wholly irrelevant for the purpose of disposal of the suit. I see no reason why time was granted over and over again to the opposite party to file the written statement. If the litigants are allowed such kind of latitude in the matter of conducting litigation, the confidence of the litigating public in the judicial system itself will be undermined. ( 11 ) IT is also well settled that the Court while extending time when the actual time fixed under the relevant provision of statute has expired should give reasons. Such principle of law has been enunciated in the decision reported in AIR 2005 SC 2441 , Kailash v. Nanhku and Ors. In the instant case, the impugned order is devoid of any reason whatsoever. By the impugned order, the earlier order directing ex parte hearing of the suit was vacated upon payment of cost of Rs. 400/- to be paid by the opposite party. In the instant case, the impugned order is devoid of any reason whatsoever. By the impugned order, the earlier order directing ex parte hearing of the suit was vacated upon payment of cost of Rs. 400/- to be paid by the opposite party. It is significant to mention here that the ex parte date of hearing was fixed quite sometime before the impugned order and in spite of the same the opposite party did not file written statement as directed earlier. ( 12 ) CONSIDERATION the facts and circumstances of the case, I am of the opinion, that the impugned order is untenable, both in facts and in law, the same is accordingly set aside. The application is, thus, allowed. ( 13 ) THE learned Court below is directed to hear out and dispose of the suit as expeditiously as possible but not later than ten months from the date of communication of this order. ( 14 ) THIS order will however not prevent the opposite party from cross-examining the witnesses of the petitioner and making out his case on the basis thereof.