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2006 DIGILAW 93 (GAU)

Dalia Ghosh v. Jayanta Ghosh

2006-01-25

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J. 1. Heard Mr. S.K. Medhi, learned Counsel for the Petitioner and Mr. P.K. Roy, learned Counsel for the Respondent. 2. This Misc. case arising out of Tr.P. (C) No. 10/2005 pending before this Court, has been filed seeking a direction to recall the orders dated 23.03.2005 and 19.04.2005 passed by the learned Additional District Judge, Cachar at Silchar in T.S. (M) No. 94/2004 while the interim order dated 21.2.05 passed by this Court in the instant Tr.P. (C) No. 10/2005 which was allowed to continue vide order dated 23.3.05 staying the further proceedings of the above referred Matrimonial Title Suit, pending before the Court of learned Addl. District Judge, Cachar at Silchar has been in force. 3. Advancing his limited argument, Mr. Medhi has contended that while issuing notice of motion in the present transfer petition on 21.2.05, this Court granted interim relief to the Petitioner by staying the further proceedings of the abovementioned T.S. (M), now pending before the Court of learned Addl. District Judge, Cachar at Silchar making the notice returnable to a date on 16.3.05. However, on the fixed date, though the case was listed before the Court, due to paucity of time, the business of the Court did not permit to take up the matter and accordingly the same was listed on 23.3.05 on which date the Court ordered that the interim order passed on 21.2.05 should continue. 4. On the said day i.e. on 23.3.05, a copy of the earlier order dated 21.2.05 was produced before the Court of the learned Addl. District Judge, Cachar at Silchar informing about the stay of the proceedings of the suit and along with said information, a petition praying for time to file written statement was also filed. The learned Counsel for the Petitioner has fairly submitted that since the interim order dated 21.2.05 was passed only to continue till to the returnable date i.e. 16.3.05 and that the same was extended only on 23.3.03 as indicated above, the said factual position could not be rightly placed before the trial Court in order to enable the said Court to pass necessary orders. 5. 5. Since the interim order passed on 21.2.05 was operative only till 16.3.05, the learned trial Court by order dated 23.3.05 rejected the prayer for stay of the proceedings holding that the stay was granted by the Hon'ble High Court only till 16.3.05 and allowed the prayer to file written statement fixing 19.4.05. 6. On 19.04.05 when the matter was taken up by the trial Court, according to Mr. Medhi, inadvertently and by bonafide mistake, the order of extension of interim order dated 23.3.05 could not be produced and as a result the trial Court by order dated 19.4.05, relying on a decision of this Court reported in (2004) 1 G.L.R. 381 refused to grant permission to the Defendant/Petitioner to file written statement holding that the written statement could not be permitted to be filed after the expiry of 90 days in terms of Order 8, Rule 1 of Code of Civil Procedure. 7. It is contended by the learned Counsel for the Petitioner that, if the Petitioner is refused to file written statement, in view of the order dated 19.4.05, even though he is armed with an interim order from this Court, being in force till date, the same would cause irreparable loss and injury to him and the purpose of filing of this present transfer petition would be wholly frustrated and the impugned orders may, hence, be recalled in the interest of justice so as to enable the Petitioner to file an appropriate written statement. He has also apprised this Court by placing a certified copy of the order dated 22.4.05 passed by the trial Court that presently the entire suit has been stayed in compliance of the interim order passed on 23.3.05. 8. On the other hand, Mr. Roy, learned Counsel for the Respondent, has in all fairness, submitted that he has no objection if the Petitioner is permitted to file her written statement before the trial Court by recalling the orders abovementioned to meet the ends of justice. 9. In a recent decision, of a case in Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors. reported in (2005) 6 SCC 705 , the Apex Court following its earlier two decisions, namely, (1) Kailash v. Nanhku and Ors. 9. In a recent decision, of a case in Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors. reported in (2005) 6 SCC 705 , the Apex Court following its earlier two decisions, namely, (1) Kailash v. Nanhku and Ors. reported in (2005) 4 SCC 480 and (2) Salem Advocate Bar Association, T.N. v. Union of India reported in (2005) 6 SCC 344 , opined that the court may permit filing of written statement beyond upper limit of 90 days prescribed under Order 8, Rule 1 of Code of Civil Procedure in exceptional cases only as Order 8, Rule 1 and proviso thereto are directly in character and not mandatory. 10. In view of the above authorities, it can be said that upper limit of 90 days may be extended in the case at hand considering the same as an exceptional case. 11. Be that as it may, since the interim order has been in operation at the time of passing of the impugned orders dated 23.3.05 and 19.4.05 and as agreed to by the learned Counsel for the parties, this Court is of the considered view that the ends of justice would be met if the Petitioner is allowed to file her written statement as and when the matter will be taken up immediately after disposal of this transfer petition by this Court. It is ordered accordingly. 12. For the reasons, discussions and observations made above, the impugned orders dated 23.3.05 and 19.4.05 are hereby recalled. 13. This Misc. case stands disposed of accordingly. However there shall be no order as to costs.