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2014 DIGILAW 724 (GAU)

SWAPAN MANDAL v. KHITISH CHANDRA MANDAL

2014-07-21

A.M.SAPRE

body2014
Judgment Heard Mr. N. K. Kalita, learned counsel for the petitioner. This revision is filed by the defendant under Section 115 of the Code of Civil Procedure against an order dated 29.06.2013 passed by learned Munsiff, North-Salmara, Abhayapuri in T.S. No.28/2012. By the impugned order, learned Civil Judge declined to take on record the written statement filed by the revision petitioner in the suit. So the short question that arises for consideration in this revision is whether learned Civil Judge was justified in not allowing the defendant to file the written statement or in other words whether learned Civil Judge was justified in not taking the written statement filed by the defendant on record in the suit filed by the respondent (plaintiff) for adjudication of the rights of the parties on merits. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to allow the revision in part and set aside the impugned order, with directions. This Court has however noticed that though written statement was filed but it was filed beyond the period of 90 days. It was actually filed on 136th days. In order to do substantial justice and keeping in view the observation made by the Supreme Court in Salem Bar Association case [ (2005)6 SCC 344 ] interpreting Order 8 Rule 1 and explaining its true scope enabling the defendant to file written statement even after expiry of 90 days and further having regard to the nature of factual controversy involved in the suit, I direct that written statement filed by the defendant on 16.10.2012 be taken on record in the suit subject to payment of cost of Rs.500/- (Rupees Five Hundred) payable by the petitioner. This cost of Rs.500/- would be deposited by the petitioner within one month from today in the Court below. On such deposit being made, it shall be paid to the State Legal Services Authority. The trial court will then frame the issues on the basis of pleadings and then proceed to decide the suit on merits within one year as an outer limit. Needless to observe, the trial Court shall decide the suit strictly in accordance with law on merits. In case, if the petitioner fails to deposit the cost within one month in terms of this order, then the written statement would not be taken on record. Needless to observe, the trial Court shall decide the suit strictly in accordance with law on merits. In case, if the petitioner fails to deposit the cost within one month in terms of this order, then the written statement would not be taken on record. The trial court shall then proceed to decide the suit without written statement. A copy of this order be filed before the court below within a week to enable him to proceed in the trial as directed. No cost.