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2007 DIGILAW 1247 (RAJ)

Durga Singh v. B. O. R.

2007-07-04

AJAY RASTOGI

body2007
Honble RASTOGI, J.—Matter has come up on application filed under Article 226(3) of Constitution for vacation of ex parte stay order passed by this Court dated 17th July, 2006. 2. With the consent of parties, the matter is finally heard and decided at this stage. 3. Instant petition has been filed by defendant-petitioners assailing the order dated 21st November, 2005 passed by learned Sub-Division Officer whereby the written statement submitted by them was not taken on record on the objection raised by respondents by filing application under Order 8, Rule 1 CPC. Against the said order, revision preferred before Board of Revenue has also been dismissed vide order Annex.4 dated 23rd March, 2006. 4. Plaintiff-respondents filed a suit before the Revenue Court for declaration and correction of entries in the revenue record in regard to land in dispute. Respondent Nos. 3 and so also 1 & 2 were duly served which is evident from order-sheet of Trial Court dated 18th July, 2005, but so far as defendant No.3 is concerned, written statement was filed by him on 19th October, 2005 and so also present petitioners who are defendant Nos. 1 & 2 filed written statement on 8th November, 2005. At this stage, the plaintiff-non-petitioners raised objection by submitting application u/Order 8 Rule 1 CPC on the premise that since 90 days have expired after service was duly effected upon them, as such, the written statement cannot now be taken on record. Petitioners submitted reply and it was clearly pointed out that after service of summons, the plaintiff-non-petitioners filed application seeking amendment u/Order 6 Rule 17 CPC which was allowed by learned trial Judge and immediately thereafter, they proceeded to file written statement which was submitted on 8th November, 2005. It was further pointed out that after filing Vakalatnama, Court itself granted time for filing written statement and the delay which has been caused in filing written statement was duly explained and same was taken into consideration for taking the written statement on record. 5. Learned trial Judge after taking into consideration the provisions of Order 8 Rule 1 CPC allowed the application filed by plaintiff-non-petitioners and the revision preferred in pursuance thereof was dismissed by Board of Revenue vide order dated 23rd March, 2006. 6. I have considered the submission of both the counsel and perused the material on record. 7. 5. Learned trial Judge after taking into consideration the provisions of Order 8 Rule 1 CPC allowed the application filed by plaintiff-non-petitioners and the revision preferred in pursuance thereof was dismissed by Board of Revenue vide order dated 23rd March, 2006. 6. I have considered the submission of both the counsel and perused the material on record. 7. Order 8 rule 1 CPC mandates that the written statement is ordinarily to be filed without 30 days and with the leave of Court, it has to be submitted atleast within 90 days. The object behind is that the proceeding may expeditiously go on and justice to the parties be made as early as possible and no delay should be caused on account of pendency of litigation. The Apex Court in Shaikh Salim Haji Abdul Khayumsab vs. Kumar, (2006) 12 SCC 46 has also examined the scope of Order 8 Rule 1 CPC and considered to the directory and so far as exception is concerned, reasons are required to be assigned while taking the written statement if allowed to be taken on record. 8. In the instant case, petitioners in their reply to application have given proper explanation and this Court is satisfied that the explanation which has been furnished certainly requires attention which has not been taken note of by learned trial judge while deciding the application filed by plaintiff-non-petitioners under Order 8 Rule 1 CPC and the same fault was committed by Board of Revenue as well while dismissing the revision preferred by petitioners under order impugned dated 23rd March, 2006. Even otherwise, the overall delay which can be considered in the facts of instant case is of 15 days and this Court is of the opinion that will certainly cause injustice to defendant-petitioners if opportunity is not made available to them. 9. Consequently, the writ petition stands allowed. The orders dated 21st November, 2005 and 23rd March, 2006 are hereby quashed and set aide. The written statement submitted by petitioners be taken on record provided they deposit cost of Rs. 2500/-.