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2015 DIGILAW 1200 (JHR)

BHARAT KAIVART @ BHARAT CHANDRA KAIVART (KEWAT) v. KAMLA @ BIMLA KAIVART (KEWAT)

2015-09-30

SHREE CHANDRASHEKHAR

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JUDGMENT : Shree Chandrashekhar, J. Aggrieved by order dated 17.08.2013 in Title (P) Suit No.101 of 2011, the present writ petition has been filed. 2. The petitioners are defendant nos.1 and 2 in Title (P) Suit No.101 of 2011. The petitioners were served summons on 18.01.2012 and they appeared in the suit on 02.08.2012. Vide order dated 07.02.2013, the trial court debarred the defendant nos.1 and 2 from filing written statement. The petitioners filed application on 02.05.2013 under Order VIII Rule 1 CPC for taking the written statement on record however, the said application has been rejected vide order dated 17.08.2013. Aggrieved, the petitioners have preferred the present writ petition. 3. Vide order dated 05.08.2015, notices were issued to the respondents. The petitioners were also directed to serve dasti notice upon the respondents. Order dated 26.08.2015 records that notices upon respondent nos.1 to 5 were validly served however, the respondents have not appeared in the present proceeding. The matter was adjourned on two occasions thereafter. Today also there is no representation on behalf of the respondents. 4. The learned counsel for the petitioners submits that the petitioners were prevented from appearing in the title suit due to reasons beyond their control. After the petitioners appeared, the trial court granted time for filing written statement however, on 07.02.2013 without granting further opportunity to the defendant nos.1 and 2, they were debarred from filing written statement. It is contended that the provision under Order VIII Rule 1 CPC is directory and not mandatory. The petitioners produced the medical report which discloses illness of the defendant no.1 which was a sufficient ground for condoning the delay in filing written statement however, the trial court has erroneously disbelieved the medical report submitted by the petitioners. 5. I find that Title (P) Suit No.101 of 2011 was instituted for a preliminary decree for 1/3rd share of the plaintiff and defendant nos.1 and 2 in the suit scheduled property. A further prayer seeking cancellation of registered saledeed no.3539/3006 executed by defendant no.1 and the husband of the defendant no.2 on 18.05.2009 and the registered saledeed dated 17.06.2011 as illegal, void, abinitio and inoperative, has also been made by the plaintiff. It appears that the defendants were served summons on 18.01.2012 and, the defendant nos.1 and 2 appeared on 02.08.2012, when the trial court granted time to them for filing written statement. It appears that the defendants were served summons on 18.01.2012 and, the defendant nos.1 and 2 appeared on 02.08.2012, when the trial court granted time to them for filing written statement. On the next date, that is, on 23.08.2012, opportunity for filing written statement was again granted to the defendant nos.1 and 2. On the next two dates, the Presiding Officer was on leave and on 03.01.2013/04.01.2013, both the parties filed attendance through lawyer. It appears that on 24.01.2013, plaintiff did not take steps in the matter and the matter was posted on 07.02.2013. Order dated 24.01.2013 discloses that the matter was posted for written statement by the defendant nos.1 and 2 however, on 07.02.2013, the trial court debarred the defendant nos.1 and 2 from filing written statement. The impugned order dated 17.08.2013 further discloses that the trial court noticed that opportunities were granted to the defendant nos.1 and 2 and they took a plea that between the period 23.01.2012 to 22.11.2012, defendant no.1 was ill. The medical treatment report of defendant no.1 from 01.01.2013 to 28.04.2013 was produced before the trial court however, the trial court merely observing that it creates doubt about the health of defendant no.1, dismissed the application dated 02.05.2013 under Order VIII Rule 1 CPC. It is not in dispute that alongwith application under Order VIII Rule 1 CPC, the petitioners filed application seeking condonation of delay. It is well settled that the applications seeking condonation of delay are dealt with liberally and while deciding the application, the court is required to ascertain the stake of the parties and the probable loss which may cause to a party. As noticed above, in Title (P) Suit No.101 of 2011 the defendant nos.1 and 2 have valuable interest involved. The saledeed executed by the defendant no.1 and husband of defendant no.2 are under challenge in title suit. The plaintiff has prayed for preliminary decree for 1/3rd share in the suit scheduled property for herself and the defendant nos.1 and 2. It has been held by the Hon'ble Supreme Court that the provision under Order VIII Rule 1 CPC is only directory and it is not mandatory and in appropriate cases, the trial court can extend the time for filing written statement. In “Kailash Vs. It has been held by the Hon'ble Supreme Court that the provision under Order VIII Rule 1 CPC is only directory and it is not mandatory and in appropriate cases, the trial court can extend the time for filing written statement. In “Kailash Vs. Nanhku”, (2005) 4 SCC 480 , the Hon'ble Supreme Court has observed as under:- 46.(iv) “The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the noncompliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.” 6. Considering the above facts, I am of the opinion that the defendant nos.1 and 2 should be granted an opportunity to contest the suit on merits by filing written statement. Accordingly, the impugned order dated 17.08.2013 is setaside. It appears that the defendant nos.1 and 2 have filed written statement alongwith application dated 02.05.2013. The written statement filed on behalf of defendant nos.1 and 2 shall be taken on record and the trial court shall proceed in the matter, in accordance with law. 7. The writ petition stands allowed.