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2010 DIGILAW 585 (JHR)

Bihari Puru v. Swami Shailendra Nand Puri

2010-05-11

D.G.R.PATNAIK

body2010
Order Heard the learned counsel for the parties. 2. The present writ application under Article 227 of the Constitution of India, has been filed by the petitioner/defendant for challenging the order dated 29.9.2005, passed by the Sub-Judge-I, Palamau at Daltonganj, in Title Suit No. 102 of 2001, whereby the petitioner's application dated 16.5.2005 for accepting his written statements, was rejected by the court below. 3. From the rival submissions, the facts which appear, are as follows:- The Respondent/plaintiff had filed the aforesaid Title Suit before the court below, some time in the year 2001, for declaration of his right, title and interest in the suit property. On receipt of the summons, the defendant appeared in the suit on 17 .1.2002. Thereafter, for whatever reasons, the defendant did not chose to file his written statements within the period stipulated under Order VIII Rule 1 of the Code of Civil Procedure and even beyond the period of 90 days after his appearance. Finally he filed his written statements on 185.2004 i.e. after a delay of two years. The plea taken by the petitioner was that after his appearance, a petition for injunction under Order XXXIX Rules 1 & 2 of the C.P.C. was filed by the plaintiff against the defendant and on such application being allowed by the trial court, the defendant had moved the application court against the order of injunction and the matter continued to rest with the appellate court for a long time and on account of the pendency of the appeal before the appellate court and the records of the court below, having been transmitted to the appellate court, the petitioner/defendant could not possibly file his written statement within time. 4. On the previous date, when this issue was raised, this Court had directed the petitioner to obtain the certified copies of the entire order-sheet of the trial court's records and produce the same so as to enable assessment of the date as to when the appellate court had called for the records of the trial court and when was it transmitted to the appellate court and when was it received back in the office of the trial court from the appellate court. The petitioner has not filed the certified copy of the order-sheet. The petitioner has not filed the certified copy of the order-sheet. The explanations offered by the learned counsel for the petitioner is that though he has received the certified copy of the order-sheet of the trial court's records, but in absence of the 'Pairvikar, the same could not be filed on affidavit. Learned counsel has, however produced the certified copy of the order-sheets for this Court's perusal. As it appears from the copy of the records of the court below, the injunction application, filed by the plaintiff, was disposed of by the trial court on 8.3.2002 and a simultaneous direction was given to the defendant/petitioner to file his written statements. It also appears that the trial court records which was transmitted to the appellate court, was received back in the office of the trial court on 16.12.2003. It also appears that though the injunction application was disposed of on 8.3.2002 but the records of the suit continued to be retained by the trial court till 2.7.2002, where after it was transmitted to the appellate court. The petitioner had appeared in the suit on 17.1.2002 and he was therefore, required, according to the provisions of Order VIII Rule 1 of the C.P.C. to file his written statements within the period stipulated therein, but he did not chose to do so. Such liberty was taken by the petitioner on the plea that the amendment under Order VIII Rule 1, was not effective prior to July, 2002. Even, as it appears, the trial court records was received back from the appellate court in the office of the trial court on 16.12.2003. Yet, the petitioner did not chose to file his written statements promptly thereafter. It further appears that though the petitioner had filed the petition for condoning the delay but the trial court was not satisfied with the explanations offered. The petitioner has not been able to explain as to why even after receipt of the trial court records in the office of the trial court on 16.12.2003, he did not chose to file his written statements promptly thereafter and continued to evade his responsibility till .18.5.2004. 5. The petitioner has not been able to explain as to why even after receipt of the trial court records in the office of the trial court on 16.12.2003, he did not chose to file his written statements promptly thereafter and continued to evade his responsibility till .18.5.2004. 5. It is by now well-settled that the time limit, prescribed under Order VIII Rule 1, of the C.P.C. though not mandatory in nature and allows a discretion to the trial court to extend the period reasonably up to 90 days but such discretion could be allowed only if the Court is satisfied-that the defendant was prevented on account of a reasonable and justified ground from filing his written statements in time. 6. In the instant case, the petitioner has not been able to offer any reasonable explanation for the delay. 7. Upon going through the impugned order of the court below, I find that adequate reasons have been assigned by the trial court for rejecting the petitioner's case for accepting his written statements. The impugned order, in my opinion, does not suffer from any impropriety or illegality. As such, there being no merit in this writ application, the same is dismissed. However, under the facts and circumstances, there shall be no order as to costs. 8. It is informed by the learned counsel for the petitioner that merely on account of the pendency of this writ application, the proceedings before the trial court in the Title Suit has not progressed at all,' although there was no order of stay of the proceedings, passed by this Court. The trial court is therefore, directed to expedite and to conclude the trial as early as possible, preferably within a period of three months from the date of this order.