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2010 DIGILAW 189 (CAL)

Asit Kumar Sinha v. Ranjit Kumar Sinha

2010-02-23

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THIS application under Article 227 of the Constitution of India is directed against an order dated 7th August, 2007 passed by the learned Civil Judge, Junior Division, 1st Additional Court at Alipore, in Title Suit No. 78 of 2007 by which the defendant's prayer for acceptance of the written statement which was filed beyond the prescribed time, was rejected by the learned Trial Judge. Hence, the defendant has filed the instant application before this Court. 2. HEARD Mr. Acharya, learned Advocate, appearing for the petitioner and Mr. Bikash Kumar Chattopadhyay, learned Advocate, appearing for the opposite party. Considered the materials on record, including the order impugned. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. 3. IT has now been settled by several judicial pronouncements by the Hon'ble Apex Court as well as by this Hon'ble Court that the time-limit which is prescribed for filing written statement under Order 8 Rule 1 of the Civil Procedure Code is not mandatory. As such, the Court in suitable circumstances may extend the time-limit for filing the written statement even beyond the time prescribed under Order 8 Rule 1 of the Civil Procedure Code. 4. HERE is the case, where this Court finds that the defendant appeared in the said suit on 22nd August, 2005, but he filed written statement on 12th June, 2007 without taking any extension of time for filing such written statement. The defendant stated in his application that he is a heart-patient and was under constant medical treatment from 2005-2006. It was, further stated by him that he had to be admitted in hospital for his treatment and remained in the hospital from 17th April, 2005 to 28th April, 2005. The defendant stated that he could not keep regular contact with his lawyer for giving proper instruction to him for filing written statement within the prescribed time and as such there was some delay in filing the written statement in the said suit. The explanation which was given by the defendant/petitioner in his said application was not accepted by the learned Trial Judge as the learned Trial Judge was of the view that the said explanation was not convincing. Accordingly, the defendant's prayer for acceptance of his written statement was rejected by the learned Trial Judge. 5. The explanation which was given by the defendant/petitioner in his said application was not accepted by the learned Trial Judge as the learned Trial Judge was of the view that the said explanation was not convincing. Accordingly, the defendant's prayer for acceptance of his written statement was rejected by the learned Trial Judge. 5. THE defendant subsequently filed an application for reviewing the said order. 6. THE said application has also been rejected by the learned Trial Judge on 21st August, 2007. Be that as it may, on consideration of the explanation which was given by the petitioner and particularly because of the fact that the statements which were made by the petitioner regarding his illness remain uncontroverted by the plaintiff/opposite party, this Court cannot concur with the findings of the learned Trial Judge that the explanation which was given by the petitioner for the delay in filing the written statement is not convincing. 7. ACCORDINGLY, the impugned order stands set aside. 8. LET the written statement which was filed by the defendant be accepted, subject to payment of cost of Rs. 3,000/- to be paid by the defendant/ petitioner to the plaintiff/ opposite party within two weeks from date. The revisional application is, thus, allowed. 9. URGENT xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.