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2016 DIGILAW 158 (JHR)

Ishwar Singh v. Sayed Muslim Razza

2016-01-21

SHREE CHANDRASHEKHAR

body2016
ORDER : The petitioners are aggrieved by order dated 02.09.2004 whereby, the Trial Court has declined to accept the written statement. 2. Title Suit No. 92 of 2000 was instituted for declaration of plaintiffs' title over the suit land and confirmation of their possession over the same. The plaintiffs' averred that they are purchasers of Schedule-A land from Md. Yasin who was a Khewatdar. The Anchal Adhikari passed order of assessment dated 25.07.1977 in favour of said Md. Yasin. It is stated that Title Suit No. 05 of 1979 was filed by the defendant nos. 1 & 2 against Md. Yasin and others which was dismissed on 12.07.1980 however, Title Appeal No. 44 of 1980 and Title Appeal No. 08 of 1981 were allowed and the case was remanded for fresh consideration. On remand the suit was decreed ex-parte. The petitioners who were defendant nos. 1 to 5 in Title Suit No. 92 of 2000 contested the suit disputing that Md. Yasin was in possession of the suit land or he had any vendable title to transfer the suit property. The defendants claimed that through registered sale-deed, 0.70 acres land was transferred to the defendant nos. 1 & 2 by Ramavtar Singh whose name is entered in Register Part-II and he was the recognized tenant holding over possession thereof. Subsequently, the defendant nos. 1 & 2 transferred the aforesaid land through different sale-deeds in favour of different persons including defendant nos. 3 & 5. It was asserted that mutation for the land purchased by the defendant nos. 3 & 5 has been allowed in their name. 3. In the suit summons were issued on 29.06.2000. The plaintiffs filed application under Order XXXIX Rule 9 CPC however, the suit remained pending for consideration of application dated 20.11.2000 filed by plaintiff no. 2 seeking deletion of his name. The defendants appeared on 01.02.2001 and the Court granted time for filing reply to the injunction petition. After hearing the parties the injunction petition was dismissed on 30.08.2001 and the defendants were directed to file written statement. The plaintiffs, in the meantime, filed Misc. Appeal No. 20 of 2001 and consequently, record of Title Suit No. 92 of 2000 was called in the Court of 2nd Additional District Judge, Hazaribag. The appeal was dismissed on 29.08.2003 and the record of Title Suit No. 92 of 2000 was sent to the Court concerned on 11.09.2003. The plaintiffs, in the meantime, filed Misc. Appeal No. 20 of 2001 and consequently, record of Title Suit No. 92 of 2000 was called in the Court of 2nd Additional District Judge, Hazaribag. The appeal was dismissed on 29.08.2003 and the record of Title Suit No. 92 of 2000 was sent to the Court concerned on 11.09.2003. Thereafter, the defendants were granted opportunity for filing written statement and, vide order dated 13.07.2004, prayer seeking further time for filing written statement was declined and the suit was fixed for hearing. The defendants filed written statement along with application dated 03.08.2004 for accepting the written statement however, the said application has been dismissed vide impugned order dated 02.09.2004. 4. From the aforesaid facts, it is apparent that the petitioners have valuable interest involved in Title Suit No. 92 of 2000. There is a decree of the competent Court in favour of defendant nos. 1 & 2 in respect of the suit property. The written statement filed by the defendants is infact, reproduction of the stand taken by them in reply to the injunction petition. In “Rani Kusum (Smt.) Vs. Kanchan Devi (Smt.)”, (2005) 6 SCC 705 , the Hon'ble Supreme Court has held that the statutory provision under Order VIII Rule 1 CPC does not create a bar upon the power of the court to grant time even beyond the extended statutory period of 90 days. In “Kailash Vs. Nanhku”, (2005) 4 SCC 480 , the Hon'ble Supreme Court has observed as under : “466(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.” 5. 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.” 5. Considering the aforesaid facts, I am of the opinion that one opportunity should be granted to the defendants to contest the suit on merits. Accordingly, impugned order dated 02.09.2004 is set-aside and the written statement filed by the defendants is directed to be taken on record. However, in view of the delay in filing the written statement, the defendants are directed to pay Rs. 10,000/- as cost to the plaintiffs. The writ petition stands allowed, in the aforesaid terms. Petition allowed.