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2016 DIGILAW 1166 (GAU)

Arjun Koiri v. Phoolbasia Koiri

2016-12-22

KALYAN RAI SURANA

body2016
ORDER : Kalyan Rai Surana, J. Heard Mr. S.K. Medhi, learned counsel for the petitioners. The petitioners in this revision are defendants Nos. 1, 2, 6, 7, 14, 15 and 16 in Title Suit No. 25/2014, which pending for disposal before the court of learned Civil Judge No. 1, Silchar, Cachar. Also heard Mr. S.D. Purkayastha, learned counsel appearing on behalf of sole respondent, who was the plaintiff in the said suit. 2. Mr. Medhi, learned counsel for the petitioner submits that in this revision he has challenged the order dated 01.02.2016 passed by the learned Civil Judge No. 1, Silchar, Cachar in Title Suit No. 25/2014, rejecting the prayer to vacate the order passed to proceed ex-parte against Petitioner No.1/defendant No.16. He submits that although a joint written statement was filed by the defendants Nos. 1, 2, 6, 7, 14, 15 and 16 had jointly presented, the said written statement was accepted in respect of defendants Nos. 1, 2, 6, 7, 14 and 15 and insofar as the defendant No. 16 is concerned, the learned trial court held that the written statement was not found to be filed within the prescribed time. Therefore, by the order dated 20.08.2014, the written statement filed in respect of the defendant No. 16 was not accepted. 3. Mr. Medhi submits that thereafter, the petitioner No. 1 herein, who is defendant No. 16 in the said suit had filed an application under section 5 of the Limitation Act, 1963 read with section 151 of the CPC, praying for condoning the delay in presenting his written statement and also praying for acceptance of the written statement, which was already on record. Mr. Medhi submits that the ground taken in the said petition was that the defendant No. 16 had undergone ophthalmic surgery on the right eye and further his learned counsel was suffering from Parkinson's disease with various neurological problems, which prevented from filing his written statement on time. In order to further buttress the point, Mr. Medhi, learned counsel for the petitioners refers to the list of documents which was filed along with the said application to show that the petitioners had presented as many as 15 (fifteen) numbers of medical prescriptions, medical reports, etc. before the Trial Court. In order to further buttress the point, Mr. Medhi, learned counsel for the petitioners refers to the list of documents which was filed along with the said application to show that the petitioners had presented as many as 15 (fifteen) numbers of medical prescriptions, medical reports, etc. before the Trial Court. He further submits that a perusal of the impugned order would show that the learned court below had erroneously referred to the provisions of Order 21, Rule 106 (3) of CPC for the purpose of rejecting his prayer. 4. Mr. Purkayastha, per contra, vehemently argued in support of the impugned orders passed by the learned trial court. He has submitted that the grounds pressed by the petitioners before the learned trial court were not good or sufficient grounds for acceptance of the written statement of the petitioner No.1 (Defendant No.16). He further submitted that the petitioner No.1 was negligent and, as such, he did not deserve any sympathy from this court. He further submits that the revision be dismissed. 5. Having heard the learned counsel for the parties, this Court is of the view that though the provisions of Section 5 of the Limitation Act, 1963 may not be strictly applicable for condoning the delay in acceptance of the written statement, but still, a civil court has powers under section 148 CPC to enlarge time to accept written statement beyond the maximum prescribed limit of 90 days as prescribed under Order 8, Rule 1 CPC and moreover, the civil court also has powers under section 151 CPC to accept the written statement filed beyond the maximum prescribed limit of 90 days, if "good cause" or "sufficient causes" are shown to the satisfaction of the court. It is not possible for the court to lay down a straight jacket formulae to define what would constitute "a good cause" or "a sufficient cause" for the civil court to enlarge time for accept written statement filed beyond the maximum prescribed outer limit of 90 days as prescribed under proviso to Order 7, Rule 1 CPC. It is not possible for the court to lay down a straight jacket formulae to define what would constitute "a good cause" or "a sufficient cause" for the civil court to enlarge time for accept written statement filed beyond the maximum prescribed outer limit of 90 days as prescribed under proviso to Order 7, Rule 1 CPC. This court hastens to add that in cases where the court is of the opinion that the delay in presentation of the written statement has been caused by sheer negligence of the concerned defendant in presenting written statement, in a given case, the civil court would be acting within the parameters of law for refusing to accept such written statement not presented within 30 days as provided under the proviso to Order 7, Rule 1 CPC. 6. This Court has perused the materials available on record and also heard the learned counsel for both the sides. In the opinion of this court although the procedure prescribed in the Civil procedure Court insofar as Order 8, Rule 1 is concerned had already been held to be directory and not mandatory and therefore, such procedure are required to be used not to penalize a defaulting litigant who had shown good or sufficient cause because procedural law are required to be seen as a handmaid of justice. This court finds that the learned court below has apparently made an erroneous reference to the provisions of Order 21, Rule 106 (2) CPC as because in the opinion of this court, the said provision is relatable to the provisions of Order 21, Rule 105 CPC and therefore, the same is applicable only for the purpose of an execution proceeding. 7. This Court is of the considered opinion that the learned court below failed to consider that the grounds shown by the petitioners constituted a good, sufficient and reasonable explanation for the petitioner No.1 not being able to file written statement in time. This Court finds that in the present case, from the medical prescriptions and reports in respect of the petitioner No.1/defendant No. 16 as well as his learned counsel, the petitioners have been able to demonstrate that he was prevented by sufficient reasons for delay in filing of the written statement by the Petitioner No.1, warranting acceptance of the written statement, which was already on record. Moreover, as it was a joint written statement by the 1, 2, 6, 7, 14, 15 and 16, the respondent/ plaintiff would not have suffered any prejudice. 8. Therefore, the impugned order dated 01.02.2016, passed by the Civil Judge No. 1, Silchar, Cachar is hereby interfered with and accordingly, set aside and quashed. The said learned court is directed to accept the written statement in respect of the petitioner No. 1/defendant No. 16. 9. The revision is therefore, allowed. The parties was appear before the learned Trial Court on 04.01.2017 to receive further instructions. As the plaintiff and defendants Nos. 1, 2, 6, 7, 14, 15 and 16 are present today, no further notice is required to be served on them and, as such, the learned court below may only serve a notice upon the conducting lawyer for the other remaining defendants about the re-commencement proceedings before the learned Trial Court.