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2015 DIGILAW 1494 (JHR)

MD. SHAMIM v. MD. HANIF ANSARI

2015-12-03

SHREE CHANDRASHEKHAR

body2015
ORDER : SHREE CHANDRASHEKHAR, J. Aggrieved by order dated 25.08.2004 in Title (Eviction) Suit No.13 of 2003 whereby, the application seeking recall of order dated 29.03.2004 has been rejected, the present writ petition has been filed. 2. The petitioner is defendant in Title (Eviction) Suit No.13 of 2003. The suit was filed for ejection of the defendant on the ground of default in payment of rent and personal necessity. After the suit was admitted, summons were issued to the defendant on 16.12.2003, which was received by the defendant on 05.01.2004. The defendant appeared on 07.01.2004 and he was granted time to file written statement. Thereafter, the defendant was granted time for filing written statement on four subsequent dates however, he failed to file written statement and consequently, vide order dated 29.03.2004, the defendant was debarred from filing written statement. The defendant finally filed written statement on 21.05.2004 and he also filed an application under Section 151 CPC seeking recall of order dated 29.03.2004. The said application has been dismissed vide impugned order dated 25.08.2004. Aggrieved, the petitioner has approached this Court. 3. Challenging order dated 25.08.2004, Mr. Bhaiya Vishwajeet Kumar, Advocate assisted by Mr. Prashant Kumar Rahul, Advocate submits that as on 29.03.2004 even the statutory extended period under Order VIII Rule 1 CPC was not complete still, the trial court debarred the defendant from filing written statement. The defendant has taken a specific plea that due to non-availability of necessary documents and illness in his family, he could not file his written statement however, the plea taken by the defendant has not been considered by the trial court and the application seeking recall of order dated 29.03.2004 has been mechanically rejected. The learned counsel for the petitioner has relied on a decision in “Rani Kusum (Smt.) Vs. Kanchan Devi (Smt.)”, (2005) 6 SCC 705 . 4. Per contra, Mr. Shaukat Eqbal, the learned counsel for the respondent/plaintiff submits that the petitioner, who is a tenant has denied the landlord tenant relationship and he stopped payment of rent to the plaintiff. Only with a view to delay the proceeding in Title (Eviction) Suit No.13 of 2003, the petitioner inspite of availing five opportunities did not file written statement in time and therefore, the impugned order dated 25.08.2004 does not require interference by this Court. 5. Only with a view to delay the proceeding in Title (Eviction) Suit No.13 of 2003, the petitioner inspite of availing five opportunities did not file written statement in time and therefore, the impugned order dated 25.08.2004 does not require interference by this Court. 5. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 6. In his application dated 21.05.2004 seeking recall of order dated 29.03.2004, the defendant specifically pleaded illness in his family and asserted that the documents were in possession of his uncle and due to the said reasons, he could not file written statement. Order dated 29.03.2004 discloses that on the said date of hearing an application was moved on behalf of defendant seeking adjournment however, no one appeared to press the said application and consequently, the trial court debarred the defendant from filing written statement. The proceeding in Title (Eviction) Suit No.13 of 2003 discloses that though the plaint was presented on 26.02.2003 however, it was admitted only on 13.12.2003. The petitioner immediately upon receiving summons on 05.01.2004 appeared on 07.01.2004. Under proviso to Order VIII Rule 1 CPC, the time for filing written statement has been extended till 90 days. The provision under Order VIII Rule 1 CPC has been held directory and not mandatory. In “Rani Kusum (Smt.)”(supra), the Hon'ble Supreme Court has held that the statutory provision under Order VIII Rule 1 CPC does not create a bar to the power of the court to grant time even beyond extended statutory period of 90 days. The impugned order dated 25.08.2004 does not disclose consideration of the plea taken by the defendant for not filing written statement within the time granted by the Court. 7. Considering the aforesaid facts, I am of the opinion that the impugned order dated 25.08.2004 suffers from serious infirmity in law and accordingly, it is setaside. Consequently, order dated 29.03.2004 is setaside. The written statement filed by the defendant on 21.05.2004 shall be taken on record of Title (Eviction) Suit No.13 of 2003. However, I find that though the defendant was granted as many as six opportunities for filing written statement, he failed to file the written statement within the time granted by the court and therefore, the defendant is directed to pay Rs.5,000/- as cost to the plaintiff. However, I find that though the defendant was granted as many as six opportunities for filing written statement, he failed to file the written statement within the time granted by the court and therefore, the defendant is directed to pay Rs.5,000/- as cost to the plaintiff. The cost shall be paid to the plaintiff through a demand draft within a period of four weeks. I.A. No.3993 of 2015, which has been filed for early hearing of the writ petition, also stands disposed of.