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2007 DIGILAW 637 (GAU)

Usman Goni v. Abdul Khalique

2007-09-24

BROJENDRA PRASAD KATAKEY

body2007
JUDGMENT B.P. Katakey, J. 1. The petitioners, who are the defendant Nos. 1 to 12 in Title Suit No. 8/2005 pending in the Court of the learned Civil Judge (Jr. Division), Hojai, Sankardev Nagar, by the present petition are challenging the order dated 16.12.2006 passed by the learned Civil Judge, (Jr. Division), Hojai, Sankardev Nagar, in the said suit allowing the prayer made by the plaintiffs/opposite parties herein in Petition No. 518/06 for rejecting the written statement filed by the defendant Nos. 1 to 11 and returning the same, on the ground that such written statement was filed beyond 90 days of the date of service of summons as stipulated in under Order 8, Rule 1 of the CPC. 2. I have heard Mr. 1. Uddin, the learned Counsel for the petitioners/defendants and Mr. A. J. Atia, the learned Counsel appearing on behalf of the plaintiffs/opposite parties. 3. The learned Counsel for the petitioners at the outset has submitted that though application was filed under Section 115 read with Section 151 of the CPC, this application may be treated to be one under Article 227 of the Constitution of India, as grave injustice have been caused to the petitioner Nos. 1 to 11, who are the defendant Nos. 1 to 11 in the aforesaid suit, because of the order impugned in the present revision petition. Having considered the impugned order as well as the materials made available along with the revision petition and on hearing the learned Counsel for the parties, I am inclined to accept such oral prayer and hence the present petition is treated to be under Article 227 of the Constitution of India. 4. The learned Counsel for the petitioners has submitted that there is no dispute to the factual position that in the month of July 2005 the summons were served on the defendant Nos. 1 to 11 and accordingly on 13.09.2005 they appeared and filed application seeking extension of time for filing written statement and accordingly such time was granted. According to the petitioners since the Court vide order dated 22.12.2005 having considered the application filed seeking further time, granted time till 16.01.2006 and the written statement on behalf of the defendant Nos. 1 to 11 and accordingly on 13.09.2005 they appeared and filed application seeking extension of time for filing written statement and accordingly such time was granted. According to the petitioners since the Court vide order dated 22.12.2005 having considered the application filed seeking further time, granted time till 16.01.2006 and the written statement on behalf of the defendant Nos. 1 to 11 having filed on such date fixed, the learned Court below ought not to have by the impugned order allowed the prayer made by the plaintiffs/opposite parties in the Petition No. 518/2006, as it amounted to reviewing the order dated 22.12.2005, when no such application seeking review of the said order was filed and even the plaintiffs/opposite parties herein in the said Petition No. 518/2006 has not stated that there was no special circumstances existed for granting time to the defendant Nos. 1 to 11 to file the written statement vide order dated 22.12.2005. The learned Counsel has further submitted that the defendant No. 12, who is the petitioner No. 12 herein though was not duly served with any summons, has entered appearance before the learned Trial Court on 07.02.2006 and as by the impugned order the written statement of the defendant Nos. 1 to 11 has been rejected, the defendant No. 12/petitioner No. 12 did not file the written statement. 5. Mr. Atia, the learned Counsel appearing on behalf of the opposite parties, on the other hand, supporting the order passed by the learned Trial Court on 16.12.2006 has submitted that under Order 8, Rule 1 of the CPC the maximum time that can be allowed by the Court being 90 days, for the purpose of filing the written statement and admittedly the summons having been served in the month of July 2005 such written statement ought to have been filed by November 2005, which having not been done, the learned Court below has, rightly accepted the application filed by the plaintiffs/opposite parties being Petition No. 518/06 and rejected the written statement filed on behalf of the defendant Nos. 1 to 11. 6. The learned Trial Court vide order dated 22.12.2005 (Annexure-2 to the revision petition), on the basis of the Petition No. 1568/05 filed by the defendant Nos. 1 to 11. 6. The learned Trial Court vide order dated 22.12.2005 (Annexure-2 to the revision petition), on the basis of the Petition No. 1568/05 filed by the defendant Nos. 1 to 11 praying fortune for filing written statement, allowed times to the said defendants till 16.01.2006 by allowing the prayer made in the said petition, which means the reasons given in the said petition was accepted by the learned Court below. Accordingly on 16.01.2006 the defendant Nos. 1 to 11 filed their written statement along with necessary documents. The plaintiffs/opposite parties on 01.03.2006, thereafter, filed an application being Petition No. 518/06 praying for rejection of the written statement and return of the same to the defendant Nos. 1 to 11, on the ground that such written statement was filed beyond the prescribed period of 90 days. The said application for better appreciation is quoted below: Sir, The plaintiffs most respectfully beg to state that the defendants have filed their W/S beyond and expiry of prescribed period of 90 days which is not liable to be accepted and is liable to be rejected & returned to defendants. The defendants filed W/S is violation of amended provisions of C.P.C. It is therefore, prayed that your honour may kindly be pleased to reject & returned the W/S of the defendants for end of justice and oblige. Dt. Verification I, the plaintiffs, do hereby verify that the statements made above are true to my knowledge & I have signed this verification on 1.3.06. Sd/- Md. Sayad Ali 7. Against the said application the defendant Nos. 1 to 11 filed the objection stating that the Court vide order dated 22.12.2005 granted time to the said defendants to file written statement by 16.01.2006 and accordingly such written statement was filed on that date. The defendants, however, in the said objection has further contended that because of the lapse of the learned engaged Counsel, the written statement could not be filed within 90 days from the date of service of summons. The learned Trial Court by the impugned order dated 16.12.2006 allowed the application being Petition No. 518/06 filed by the plaintiffs/opposite parties thereby rejecting the written statement filed by the defendant Nos. 1 to 11, as prayed for, on the ground that no special circumstances arose for accepting the written statement filed beyond 90 days from the date of service of summons. 1 to 11, as prayed for, on the ground that no special circumstances arose for accepting the written statement filed beyond 90 days from the date of service of summons. The learned Trial Court, however, while passing such order has failed to take into consideration the petitioner, entered appearance before the learned Trial Court and has not filed the written statement, more so when such question did not arise and dealt with by the learned Court below vide order dated 16.12.2006. 9. In view of the above, the revision petition is allowed. The learned Trial Court is directed to proceed with the suit by taking the written statement of the defendant Nos. 1 to 11 on file. Registry is directed to communicate the order forthwith. Petition allowed.