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2017 DIGILAW 2123 (JHR)

Bhukhlal Kherwar v. State Of Jharkhand

2017-12-08

SHREE CHANDRASHEKHAR

body2017
JUDGMENT Shree Chandrashekhar, J. - Aggrieved of order dated 09.06.2011 passed in Title Suit No. 12 of 2009 whereby the trial Judge has declined to accept written statement filed on behalf of defendant Nos. 1 to 6, they have approached this Court. 2. Title Suit No. 12 of 2009 was instituted by Bartu Kherwar and others. In the suit, Deputy Commissioner, Lohardaga has been made defendant No. 7. The plaintiffs have pleaded that the plaintiffs and defendant Nos. 1 to 6 both belong to schedule tribe, by caste ''Kherwar'' and they are governed by customary law for the purpose of inheritance and succession. The suit was instituted for a declaration of the plaintiffs'' right, title and interest and possession over the suit schedule property, and for a declaration that the new survey record of rights of village Manhepat under column 2 and 17 are illegal, null and void and not binding on the plaintiffs. The defendant nos. 1 to 6 appeared on 23.09.2010 and they were granted time for filing written statement. On the next two dates, that is, 19.11.2010 and 13.12.2010, the defendant Nos. 1 to 6 were granted further time for filing written statement. The matter was listed thereafter on 25.01.2011, 04.03.2011 and 04.04.2011, however, there was no specific order extending the time for filing written statement. On 04.04.2011, the defendant nos. 1 to 6 filed written statement which was kept on record. On the same day, these defendants filed an application seeking leave of the Court for taking the written statement on record. This is the application which has been dismissed by the trial Judge vide impugned order dated 09.06.2011. 3. From the materials brought on record, it appears that the defendant No. 7 was not served or atleast no one appeared on behalf of defendant No. 7, after the defendant nos. 1 to 6 appeared in Title Suit No. 12 of 2009. The application under Order 8, Rule 1 CPC filed by the defendant nos. 1 to 6 has been declined on the ground of delay of 103 days. By now, it is well-settled that the time limit fixed for filing written statement is binding on the defendant(s), but, in appropriate cases, the Court may extend the time for filing the written statement. 1 to 6 has been declined on the ground of delay of 103 days. By now, it is well-settled that the time limit fixed for filing written statement is binding on the defendant(s), but, in appropriate cases, the Court may extend the time for filing the written statement. The provision under Order 8, Rule 1 CPC does not put a bar on the power of the Court to extend the time for filing written statement beyond the extended period of 120 days. In their application seeking leave of the Court for accepting the written statement, defendant nos. 1 to 6 have pleaded that due to unavailability of important documents, the written statement could not be prepared and filed within the statutory time limit. To this application, the plaintiffs did not file an affidavit-in-opposition and the trial Judge has not recorded a finding that the plea taken by the defendant nos. 1 to 6 is either false or not a probable cause for delay in filing the written statement by them. 4. In the above facts, I find serious infirmity in the impugned order dated 09.06.2011, however, the delay on the part of the defendant nos. 1 to 6 should also not be ignored by the Court. In my opinion, the plaintiffs should be suitably compensated for the delay caused by the defendant Nos. 1 to 6 and dragging them to this Court for resisting the writ-petition. 5. In the result, the impugned order dated 09.06.2011 is set-aside with cost of Rs. 15,000/- which shall be paid to the plaintiffs within four weeks.