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2013 DIGILAW 692 (CAL)

Madhusudhan Manna v. Sandhya Dey

2013-09-17

TARUN KUMAR GUPTA

body2013
JUDGMENT With the consent of the ld. advocates for the parties, the main application is taken up for hearing. The petitioner defendant no.2 has filed this application under Article 227 of the Constitution of India challenging order dated 14th September, 2010 passed by the learned Civil Judge (Junior Division), 3rd Court at Sealdah in Ejectment Case No.175/2004. By the order impugned, ld. trial court rejected the written statement filed by the petitioner defendant no.1 with a cost of Rs.500/-. 2. Mr. Bhattacharya appearing for the petitioner defendant no.1 submits that the present petitioner earlier filed one application challenging the maintainability of the suit and that without disposing of said application ld. trial court illegally rejected the written statement filed by the petitioner defendant no.1. 3. Mr. Ghosh appearing for the O.P. on the other hand submits that said application under Order 7 Rule 11 CPC was rejected long back by the court below being not pressed by the order dated 27th October, 2005. He submits that there was hardly any explanation for filing of the written statement in 2010 when the petitioner defendant no.1 appeared in the suit in 2004. I have gone through the order impugned. It appears that the ld. trial court has rightly observed that though the petitioner defendant no.1 appeared long back in 2004 but no satisfactory explanation was given as to why he filed said written statement in 2010. 4. In terms of Order 8 Rule 1 of the CPC the defendant is required to present a written statement within 30 days from the date of service of summons. However, defendant was given liberty to file the written statement within 90 days from the date of appearance after giving sufficient grounds for not filing the same within 30 days. In terms of Calcutta High Court Amendment only under showing exceptional cases and cogent grounds the written statement filed within 120 days of appearance may be accepted by the court but the written statement filed beyond that period cannot be accepted. 5. It is true that the Hon’ble Apex Court has laid down that the provisions of Order 8 Rule 1 of the CPC are not mandatory and rather directory. 5. It is true that the Hon’ble Apex Court has laid down that the provisions of Order 8 Rule 1 of the CPC are not mandatory and rather directory. But, at the same time, the Hon’ble Apex Court held that in case of filing of written statement beyond the prescribed limit it should be accompanied with sufficient explanation to justify the delay and the court only being satisfied about said delay can accept the written statement filed belatedly. In the case in hand, unfortunately, there is no satisfactory explanation for filing said written statement in 2010 though the petitioner defendant no.1 appeared in court in 2004 and his petition under Order 7 Rule 11 of the CPC was rejected in 2005 being not pressed. 6. In view of the discussions as made above, I find little merit in the present revisional application. Accordingly, this revisional application is dismissed on contest but without any costs. The order of stay, if any, stands vacated. 7. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.