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2009 DIGILAW 47 (CAL)

Shankar Lal Rajgaria v. Harish Chandra Shaw

2009-01-30

JYOTIRMAY BHATTACHARYA

body2009
JUDGMENT 1. This application under Article 227 of the Constitution of India is directed against an order being No. 16 dated 7th August, 2008 by which the defendant's prayer for acceptance of the written statement was rejected by the learned Trial Judge. 2. On perusal of the order-sheet relating to the said 3uit, this Court finds that though the defendant/petitioner filed his application under section 7(2) of the West Bengal Premises Tenancy Act, on 21st March, 2007 but he did not file arty written statement in the suit till 2nd July, 2008. It, further, appears from the order-sheet that time for filing written statement was extended from time to time on the prayer of the defendant and last of such extension was granted on 16th August, 2007 whereby the petitioner was permitted to file written statement on 31st August, 2007. The petitioner did not file any written statement on the said date. The petitioner also did not take any further step for extension of time for filing written statement. 3. Under such circumstances, the suit was fixed for ex parte hearing. 4. Ultimately, the petitioner filed the written statement on 2nd July, 2008. Subsequently, the petitioner also filed an application for acceptance of the said written statement by showing cause for his default in filing the said written statement earlier. 5. The learned Trial Judge rejected the petitioner's said application for acceptance of the written statement as he is of the view that the reason for the delay has not been explained by the petitioner sufficiently. 6. Heard Mr. Chakrabarti, learned Senior Counsel appearing for the petitioner and Mr. Ghosh, learned Advocate appearing for the opposite parties. Considered the materials on record, including the order impugned. 7. It is rightly pointed out by Mr. Ghosh that though the reasons for non-filing of the written statement on the previous date has been explained by the petitioner but the reason for such long delay has not been property explained by the petitioner. As such, the learned Trial Judge was justified in rejecting the petitioner's said application for acceptance of the written statement. 8. Ghosh that though the reasons for non-filing of the written statement on the previous date has been explained by the petitioner but the reason for such long delay has not been property explained by the petitioner. As such, the learned Trial Judge was justified in rejecting the petitioner's said application for acceptance of the written statement. 8. This Court holds that the reason for non-filing of the written statement upto the last extended date is not required to be explained by the petitioner as time for filing written statement was extended earlier by the learned Trial, Judge after being satisfied with regard to the explanation given by the petitioner for his inability to file written statement earlier. Thus, the petitioner is only required to explain the reasons which prevented the .petitioner from filing the written statement on the date which was fixed for filing the written statement lastly. The petitioner has given some explanations. The petitioner stated that since his lawyer was ill at the relevant time, such written statement could not be filed earlier. 9. It has also already been decided by this Court as well by the Hon'ble Apex Court that the time which is fixed for filing written statement under Order 8 Rule 1 of the Code of Civil Procedure is not mandatory. As such, the written statement can be accepted even after the time limit fixed under Order 8 Rule 1 of the Civil Procedure Code, provided however, the reasons for the delay is explained sufficiently. That apart, though the provision of Order 8 Rule 1 of the Code of Civil Procedure was amended and thereby a time limit is fixed for filing written statement by the defendant, but still then the jurisdiction of the Court for extending the time for filing the written statement and/or for accepting the written statement filed beyond the time or filed even on the date when the suit was fixed for ex parte hearing under Order 9 Rule 7 of the Code of Civil Procedure still remains unaltered. 10. Under such circumstances, this Court holds that the justice will be sub-served, if the written statement is accepted, subject to payment of cost of Rs. 1,000/- lo be paid by the defendant to the plaintiff. Such payment should be made within three weeks from date. Payment of such cost is a condition precedent for acceptance of the written statement. 11. Under such circumstances, this Court holds that the justice will be sub-served, if the written statement is accepted, subject to payment of cost of Rs. 1,000/- lo be paid by the defendant to the plaintiff. Such payment should be made within three weeks from date. Payment of such cost is a condition precedent for acceptance of the written statement. 11. The impugned order is, thus, set aside. 12. The revisional application, thus, stands allowed. 13. The learned Trial Judge is also directed to expedite the hearing of the suit as far as possible and make an utmost endeavor to dispose of the same as early as possible without granting any adjournment to either of the parties. 14. Urgent xerox certified copy of this order, if applied for, be issued to the parties as expeditiously as possible. Jyotirmay Bhattacharya, J.: Application allowed.