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2017 DIGILAW 670 (CAL)

In Re: Sahadev Prasad Gupta v. .

2017-08-08

AMITABHA CHATTERJEE

body2017
JUDGMENT : Amitabha Chatterjee, J. 1. The instant revisional application was filed by the petitioner defendant challenging the order dated 04.1.2007 passed by the Ld. Civil Judge, (Junior Division) 4th Court, Howrah, in Title Suit No. 272 of 2005. The learned Civil Judge by his order dated 04.1.2007 refused to accept the written statement filed by the defendant petitioner and fixed the suit for ex-parte hearing. The learned advocate appearing for the petitioner defendant submitted that the Opposite Party/plaintiff filed a suit for eviction being title suit No. 272 of 2005 against the present petitioner/defendant before the Court of the learned 4th Court civil Judge (Junior Division), Howrah praying for a decree for recovering of possession in respect of the suit property described in the schedule appended to that. 2. The learned advocate for the petitioner submitted that the summon was posted to the premises No. 199/2, "C" road Bamungachi, P.S. Liluah, District Howrah but was not delivered upon the defendant and same was returned in the premises No. 42/1, Kali Tala Lane P.O. Salkia, District-Howrah. On or about 12.1.2006 the said summon was received by the petitioner/defendant. 3. Upon receiving the summon the petitioner engaged one Advocate, viz., Sri Joidev Chatterjee for taking necessary steps in the suit. The said advocate promised to the petitioner that he would take appropriate steps in this matter. In the meantime the said advocate fell ill and subsequently died. 4. The learned Advocate further stated that on 01.2.2006 was fixed by the learned Court for ascertaining the contest and S/R, A/D. Upon the death of Mr. Joidev Chaterjee since deceased, the petitioner further engaged a new lawyer Mr. Samir Das. Upon enquiry from the department Mr. Samir Das came to learn that no step was taken by the said earlier lawyer Mr. Joidev Chatterjee since deceased and on 12.6.2006 the said matter was fixed for ex-parte hearing. 5. On or about 12.6.2006 the newly engaged lawyer Mr. Samir Das filed his vokalatnama and written statement accompanied by two applications, one for showing cause of delay in filing the written statement beyond the prescribed time and another application for removing the said suit form the list of ex-parte hearing. 6. Thereafter, the Learned Court fixed the matter on 14.8.2006 for acceptance of written statement and on 24.11.2006 was also fixed for acceptance of written statement. 6. Thereafter, the Learned Court fixed the matter on 14.8.2006 for acceptance of written statement and on 24.11.2006 was also fixed for acceptance of written statement. On 04.1.2007 the matter was taken up for hearing by the learned Court and the same was rejected by the learned Court. 7. The learned advocate submits that before making the said impugned order the learned Court below failed to consider that the petitioner with due diligence engaged his lawyer to defend the suit but unfortunately his lawyer fell ill and subsequently died. 8. It is further submitted that there was no latches on the part of the petitioner, upon good faith relied upon his earlier lawyer Mr. Joidev Chatterjee since deceased he was under impression that step was duly taken by his said lawyer. 9. Being aggrieved by and dissatisfied with the said order dated 04.1.2007 the present petitioner moved this Hon'ble Court in exercise of its revisional jurisdiction on the ground that:- i. The said impugned order dated 04.1.2004 refusing to accept the written statement filed by the petitioner/defendant is erroneous and incorrect. ii. The learned Court below failed to appreciate that delay in filing the written statement beyond the prescribed time was covered by facts beyond the control of the petitioner. iii. The learned judge did not fixe any date or give any opportunity to file the written statement to the defendant which was violation of natural justice. iv. The learned judge failed to consider the provision under section 148 of the Civil Procedure Code. v. The Learned Judge also failed to appreciate that the death of the said advocate for the defendant was an exceptional circumstances which was beyond the control for the petitioner. 10. The learned advocate for the petitioner further submitted that the present suit was filed on 16.12.2005 and summons was received by the defendant on 12.1.2006 so date fixed for filing the written statement was within 120 days from 12.1.2006. The written statement was however, could not be filed within the time fixed due to prolong illness of the Learned Counsel for the defendant and subsequently due to his premature expiry. 11. Subsequently, the defendants engaged another advocate for contesting the suit after the expiry of the previous learned counsel, and the newly engaged advocate filed the written statement within 149 days. Therefore, there is a delay of 30 days which should be condoned. 11. Subsequently, the defendants engaged another advocate for contesting the suit after the expiry of the previous learned counsel, and the newly engaged advocate filed the written statement within 149 days. Therefore, there is a delay of 30 days which should be condoned. In support of her contentions, the learned counsel appearing on behalf of the petitioner cited a decision reported in (2005) 4 SCC 480 . 12. The learned counsel for the Opposite Party/plaintiff raised objection to the submissions of the learned advocate for the petitioner and submitted that nowhere in the application, the petitioner stated the actual date when the earlier advocate was given the vokalatnama. Not only that the petitioner also did not inform the actual date of death of the previous lawyer. Originally, the suit was filed as early back as in the year 2005. The order impugned rejecting the petitioner's prayer for acceptance of WS was passed in 2007. So 10 years have lapsed and accordingly the present Civil revisional application should either be rejected or an exemplary cost of Rs. 50,000/- should be imposed. 13. Heard the learned advocate for the petitioner as well as the opposite party and also perused the decision reported in (2005) 4 SCC 480 . I find that in the decision cited above the Hon'ble Apex Court held that "considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the Court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision has expired...." 14. It has been further held by the Hon'ble Apex Court that "ordinarily the time schedule prescribed by order 8 Rule 1, has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him, he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The defendant should be vigilant. No sooner the writ of summons is served on him, he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by order 8 Rule 1 of the code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 15. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist. 16. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the Court. In no case shall the defendant be permitted to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The Court may impose cost for dual purpose:- I. To deter the defendant from seeking any extension of time just for the asking and II. To compensate the plaintiff for the delay and inconvenience coursed to time. 17. The Court may impose cost for dual purpose:- I. To deter the defendant from seeking any extension of time just for the asking and II. To compensate the plaintiff for the delay and inconvenience coursed to time. 17. However, no strait jacket formally can be laid down except that the observance of time schedule contemplated by order 8 Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that order 8 Rule 1 though couched in mandatory form is directory being a provision in the domain of procedural law. 18. Having heard the rival submission of the learned counsel for the petitioner as well as the Opposite Party and also in the light of the observations made by the Hon'ble Apex Court of our country in the decision cited above, I am of the view that the prayer for extension of time made by the defendant should be allowed in the instant case because the learned advocate who was engaged to defend the suit on behalf of the defendant/petitioner fell seriously ill and subsequently died. Extension of time for hearing the instant case should be allowed because due to the premature death of the engaged lawyer, the defendant could not file the written statement within the prescribed period. The premature death of the earlier lawyer for the defendant should be treated as a circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. 19. In the case at hand this Court is satisfied that the reason assigned by the defendant petitioner in support of the prayer for extension of time was good and valid. Accordingly, the written statement already filed shall now be taken on record to subject to payment of Rs. 20,000/- by way of costs payable by the petitioner herein to the plaintiff Opposite Party within a period of 4 weeks from the date of this order. 20. The revisional application thus stands allowed in the above terms. 21. As per the submission made by the learned Counsel for the Opposite Party the learned Court below is requested to dispose of the suit as expeditiously as possible, preferably within six months from the date of communication of this order. 20. The revisional application thus stands allowed in the above terms. 21. As per the submission made by the learned Counsel for the Opposite Party the learned Court below is requested to dispose of the suit as expeditiously as possible, preferably within six months from the date of communication of this order. Let a copy of this order be sent to the learned Court below for his information and asking necessary action in accordance with law.