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2017 DIGILAW 464 (GAU)

NIRAN GARO v. TULI RAM GARO (PATOR)

2017-04-20

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. M. Talukdar, learned counsel for the petitioner and Mr. R.K. Bhuyan, learned counsel appearing for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 25.04.2016 passed by the learned Civil Judge No. 1, Kamrup (M), Guwahati in T.S. No. 244/2015, by which the written statement was accepted, subject to payment of cost of Rs.500/-. 3. The learned counsel for the petitioner submits that in the present case in hand the suit was filed on 03.07.2015 and summons was issued on the defendant/respondent herein on 13.07.2015. Despite service of summons, respondent herein did not appear before the Trial Court and, as such, by order dated 15.07.2015, the suit was fixed on 10.08.2015 for ex-parte evidence of plaintiff’s witness. On 10.08.2015, the respondent herein filed an application under Order IX Rule 7 of the CPC showing cause for the previous non appearance before the Trial Court and a prayer was made to vacate the order dated 15.07.2015 to proceed ex-parte against the respondent herein. He further submits that notwithstanding the prayer of vacating the order to proceed ex-parte being allowed by order dated 06.05.2016, the written statement which was filed on 11.02.2016 was beyond the time prescribed under Rule 1 of Order 8 of the CPC. 4. By relying on the case of Thokchom Ongbi Gayabati Devi and Ors. vs. Konthoujam Bebungou Singh and Anr., 2009 (2) GLT 801 and Basant Singhania vs. Dilip Singhania, 2011 (3) GLT 469 he submits that as the written statement was not accompanied by any application claiming leave of the court to accept the written statement and there was no application under Section 5 of the Limitation Act to condone the delay in filing of the written statement, the impugned order dated 25.04.2016 to accept the written statement filed on 11.02.2016 is initiated by jurisdictional error. The learned counsel for the petitioner further submits that the learned Trial Court could not have bypassed the mandate of law under Rule 1 of Order 8 of the CPC and the said prescription of law was frustrated by passing of the impugned order dated 25.04.2016. 5. The learned counsel for the petitioner further submits that the learned Trial Court could not have bypassed the mandate of law under Rule 1 of Order 8 of the CPC and the said prescription of law was frustrated by passing of the impugned order dated 25.04.2016. 5. Per-contra, the learned counsel for the respondent submits that by order dated 06.01.2016, the learned Trial Court had directed the written statement to be filed on 06.02.2016, on that date although the learned Presiding Officer was on leave, the respondent filed a petition bearing No. 547 dated 06.02.2016 and prayed for short time for filing the written statement. The suit was thereafter posted on 11.02.2016 i.e. after five days and on the said date the written statement was duly filed by the respondent. Thereupon, the learned counsel for the petitioner prayed for being heard before accepting the written statement. Accordingly, the matter was heard by the learned Trial Court on 25.04.2016. He further submits that while vacating the order to proceed ex-parte, the learned Trial Court by the same order dated 06.01.2016 had imposed a cost of Rs.500/- for vacating the ex-parte order and, as such, by the impugned order dated 25.04.2016, the learned Trial Court ordered acceptance of the written statement with a caveat to deposit such cost on or before the next date fixed. It was further ordered that the respondent herein would deposit the cost amount further providing if such cost was not paid the matter would proceed in its own course. The case was fixed on 25.05.2016 for payment of cost and for framing an issues etc. and on the appointed date, the respondent herein had deposited the cost which is reflected in the order dated 25.05.2016. He further submits that it was for genuine and pressing reasons that he could not file the written statement on 06.02.2016. However, the same was made ready and filed on 11.02.2016 and thereafter, the matter was heard by the learned Trial Court on the acceptance of the written statement. 6. This Court on perusal of the LCR and on considering the case of Thokchom Ongbi Gayabati Devi (supra) and Basant Singhania (supra), this Court is of the view that aforesaid case law cited by the learned counsel for the petitioner is not at all relevant in the present case in hand. 6. This Court on perusal of the LCR and on considering the case of Thokchom Ongbi Gayabati Devi (supra) and Basant Singhania (supra), this Court is of the view that aforesaid case law cited by the learned counsel for the petitioner is not at all relevant in the present case in hand. In opinion of this Court, the present case in hand revolves around the previous order dated 06.01.2016 by which the learned Trial Court had vacated the order to proceed ex-parte and fixed the case on 06.02.2016 for filing of written statement. Therefore, the previous default on part of the respondent for not filing the written statement from the date of service of summons till 06.02.2016 is not liable to be re-opened again in view of the fact that the petitioner has accepted the order dated 06.01.2016 without any challenge to the same. 7. Moreover, by virtue of the otherwise valid and lawful order dated 06.01.2016, the learned Trial Court had fixed the case for filing of written statement on the next date, the effect of such an order is that the learned Trial Court had extended the time for filing of written statement. The said order having attained finality, there is no reason for this revision court to interfere with the impugned order. The impugned order dated 25.04.2016 does not suffer from any jurisdictional error. Therefore, this Court is not inclined to interfere with the same. 8. Accordingly, this revision is dismissed. The parties are left to bear their own cost. 9. The LCR may be returned back immediately. 10. The parties are directed to appear before the learned Civil Judge No. 1, Kamrup (M), Guwahati on 05.05.2017 to seek further instruction from the said learned Court.