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2008 DIGILAW 968 (ORI)

SK. DAUD v. SK. KAMIRUDDIN

2008-10-30

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this writ application under Articles 227 of the Constitution of India, challenge has been made to the order dated 18.8.2008 passed by the learned Civil Judge (Junior Division), Chandikhol in Civil Suit No. 120 of 2006 allowing the petitions filed by the Defendants-opposite parties under Order 9, Rule 10 and Order 9, Rule 7 of the CPC for coadunation of delay in filing the written statement and acceptance of their written statement respectively. 2. The brief facts of the case are as follows: The Petitioners as Plaintiff filed Civil Suit No. 120 of 2006 before the learned Civil Judge (Junior Division), Jajpur for permanent injunction against the present opposite parties-Defendants. C.S. Plot Nos. 1448, 1449, 1450, 1451, 1452 and 1455 are the joint property of the Petitioners, opposite parties and their co-sharers. All the plots are situated in a compact and used as dwelling house of the parties and their co-sharers. The suit land described in Schedule-A of the plaint consists of three lots out of which Lot No. 1 relates to C.S. Plot No. 1448 with an area of Ac.0.037 decimals under Khata No. 425 corresponding to M.S. Plot No. 2l90 with an area of Ac.0.015 decimals recorded in the name of the Petitioners. Lot Nos. 2 and 3 corresponding to M.S. Plot No. 2195 with an area of Ac.0.10 decimals recorded in the name of Sk. Abdul Hakim and others. Plot No. 2196 relates to Ac.0.09 decimals recorded in the name of the opposite parties and his brothers. Plot No. 2196/5797 consists of Ac.0.13 decimals recorded in the name of the Petitioners. The Plaintiffs stated that the suit plot No. 1449 measuring an area of Ac.0.36 decimals was recorded as "Puruna Padia" under Anabadi C.S. Khata No. 425. One Mahanta Balaram Das was the Ex-landlord of the said khata who granted oral lease in respect of Ac.0.10 decimals out of said plot No. 1448 in favor of Sk. Kalo on acceptance of Salami in the year 1946. After vesting, the land was recorded in the name of Sk. Kalo under Zamabandi No. 425/71. The Ex-landlord Mahanta Balaram Das also leased out another Ac.0. l0 decimals of land to one Sk. Sirajuddin, co-sharer of Sk. Kalo, which was subsequently sold to Sk. Kalo and his brother Sk. Kalo on acceptance of Salami in the year 1946. After vesting, the land was recorded in the name of Sk. Kalo under Zamabandi No. 425/71. The Ex-landlord Mahanta Balaram Das also leased out another Ac.0. l0 decimals of land to one Sk. Sirajuddin, co-sharer of Sk. Kalo, which was subsequently sold to Sk. Kalo and his brother Sk. Rosan by registered sale deed dated 21.6.1948 on payment of consideration and he delivered the possession of the same. Accordingly, Sk. Kalo became the owner of Ac.0.15 decimals of land from Plot No. 1448. Sk. Kalu died leaving behind the Petitioners as their legal heirs whereas opposite parties are the sons of Sk. Najir, the pre-deceased brother of Sk. Kalo. During Major Settlement Operation, the above mentioned land of Ac.0.15 decimals was recorded in the Not-Final R.O.R under Plot No. 2190/5974 the area as Ac.0.12 decimals. As the opposite parties had No. manner of right, title and possession over the disputed land, they threatened to raise construction over the said disputed land. Therefore, the suit was filed by the Plaintiffs along with an application for ad interim injunction to restrain the opposite parties from raising any construction over the suit schedule land and from cutting or removing any trees by changing the nature and character of the suit land. 3. The opposite parties after receipt of summons appeared in the suit as well as in Interim Application No. l49 of 2006 on 20th June, 2006. Thereafter, on 4.7.2006 they appeared in the suit and sought time to file written statement. The interim application for injunction was contested and the same was allowed by the trial court by order dated 10.8.2006 granting status quo in respect of the suit land. Being aggrieved by the said order, opposite parties filed W.P.(C) No. 13471 of 2006 which was disposed of as withdrawn on 31.10.2006 giving liberty to the Petitioners to file an appeal before the appropriate forum. Thereafter, Misc. Appeal No. 50 of 2096 was filed before the lower appellate court which was dismissed on 7.4.2008 confirming the order of the trial court. Against the said order, opposite parties filed W.P.(C) No. 5967 of 2008 which was disposed of on 2.7.2008 with a direction to dispose of the suit by end of September, 2008. Thereafter, Misc. Appeal No. 50 of 2096 was filed before the lower appellate court which was dismissed on 7.4.2008 confirming the order of the trial court. Against the said order, opposite parties filed W.P.(C) No. 5967 of 2008 which was disposed of on 2.7.2008 with a direction to dispose of the suit by end of September, 2008. After disposal of the writ petition by this Court, the present opposite parties filed applications on 6.8.2008 under Order 9, Rule 10 and under Order 9, Rule 7 of the CPC to condone the delay in filing the written statement and for acceptance of the written statement respectively. Along with the said applications, they filed their written statement. The learned Civil Judge allowed the applications on the ground that sufficient cause had been shown by the Petitioners for condoning the delay in filing the written statement and accepted the written statement. While allowing the said applications, he imposed a cost of Rs. 500 to be paid by the Defendants to the Plaintiffs by 20th August, 2008 on which date the parties were directed to file the list of witnesses and documents for settlement of issues. 4. The Learned Counsel appearing for the Petitioners submitted that the trial court illegally accepted the written statement filed by the opposite parties Defendants and the said order was in clear violation of Rule 1 of Order 8 of the Code of Civil Procedure. After the amendment of the CPC in the year 2002, the Defendant has to file his written statement within 30 days from the date of receipt of summons. However, the Court can extend the said time maximum to 90 days. 5. In the present case, though summons was served on the opposite parties, they did not file their written statement and ultimately the court set them ex parte on 10th August, 2007. Though the opposite parties contested the interim application all along, they did not choose to file their written statement earlier. The suit was posted for ex parte hearing on 20.11.2007. In the meantime, the suit has been transferred from the court of the learned Civil Judge (Junior Division), Jajpur to the court of the learned Civil Judge (Junior Division), Chandikhol and the same was posted to 6.12.2007. Thereafter, the suit was posted to 1.5.2008 and 20.8.2008 for ex parte hearing. The suit was posted for ex parte hearing on 20.11.2007. In the meantime, the suit has been transferred from the court of the learned Civil Judge (Junior Division), Jajpur to the court of the learned Civil Judge (Junior Division), Chandikhol and the same was posted to 6.12.2007. Thereafter, the suit was posted to 1.5.2008 and 20.8.2008 for ex parte hearing. At that point of time opposite parties filed the applications on 6.8.2008 to condone the delay in filing the written statement purported under Order 9, Rule 7 of the CPC and for acceptance of the written statement. Since they did not assign any reason in the said applications, court below should not have allowed the same. 6. The Learned Counsel appearing for the opposite parties submitted that the Petitioners filed their objection to the petition filed by the opposite parties before the trial court. The learned Civil Judge took into consideration the fact that the counsel appearing for the Defendants did not intimate Defendant No. 1 who was looking after the case before transfer of the same from Jajpur to Chandikhol regarding the date of posting, adjournment of the suit and the date on which they were set ex parte. Therefore, they remained in dark about the further development of the case and could not take any step in due time though they contested the interim application for injunction in the appellate court as well as before this Court. The trial court, considering the decision reported in 2001 SAR Civil 687 (M/S. Plastic Pack Mumbai v. Ratnakar Barik Ltd.) wherein it was held that "it is unjust and inequitable to cause the party to suffer for the self-imposed dereliction of his advocate, rightly accepted the written statement and imposed a cost of Rs. 500 to mitigate the prejudice caused to the Plaintiffs. Therefore, the impugned order need not be interfered with in exercise of the jurisdiction under Article 227 of the Constitution of India as there was No. error apparent on the face of the record or there has been No. arbitrariness in the said order. The Learned Counsel for the opposite parties cited a decision of the apex Court in the case reported in 2006 (I) OLR 8 SC (Smt. Rani Kusum v. Smt. Kanchan Devi and Ors.). 7. The Learned Counsel for the opposite parties cited a decision of the apex Court in the case reported in 2006 (I) OLR 8 SC (Smt. Rani Kusum v. Smt. Kanchan Devi and Ors.). 7. After considering the rival submissions of the parties and perusing the impugned order and the applications filed by the parties before the court below, this Court finds that the learned Civil Judge considering the contention of the Defendants accepted the written statement filed by them subject to payment of cost of Rs. 500. As per the provision of Order 8, Rule 1 of the Code of Civil Procedure, after the amendment of the CPC in the year 2002, the Defendant shall file the written statement within 30 days from the date of service of summons to present his defense. If he fails to file the written statement within the period of 30 days, he shall be allowed to file the same on such other date as may be specified by the court and as per the said Proviso, the court has to record the reason for extending such period and the court may extend the period to file such written statement to 90 days which is the maximum period. This stipulated period is intended to avoid delay in disposal of the suit and unnecessary harassment to the litigants. 8. The amendment of the Code casts an obligation on the Defendant to file the written statement within 30 days from the date of service of summons on him or within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. The nature of the provision contained in Order 8, Rule 1 of the CPC is procedural. It is not a part of the substantive law. The apex Court in Smt. Rani Kusum's case (supra) has held as follows: The amended provision of Order 8 Rule 1 of the Procedure Code intends to curb the mischief of unscrupulous Defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the Plaintiffs and the Petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order 8, Rule 1 of the CPC is not completely taken away. 9. In view of the aforesaid position of law and since in the present case the trial court accepted the written statement filed by the opposite parties subject to payment of cost and the Plaintiffs-Petitioners were not able to prove that the Defendant-opposite parties tried to delay the matter, rather they tried to dispose of the suit on merits as this Court directed that the suit shall be disposed of by end of September, 2008 and status quo in respect of the suit properties has been continuing, the trial court rightly accepted the written statement filed by the Defendant-opposite parties same for disposal of the suit on merits. The Petitioners instead of cooperating with the court for disposal of the suit has challenged the impugned order and since the trial court has done the substantial justice, this Court is not inclined to interfere with the impugned order in exercise of its jurisdiction under Article 227 of the Constitution of India as there is No. error apparent on the face of the record and No. arbitrariness or caprice or arriving at a finding resulting in manifest injustice. 10. Accordingly, the writ petition is dismissed. No. costs. Final Result : Dismissed