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2018 DIGILAW 174 (CAL)

China Ghosh v. Subhodip Adhikari

2018-01-25

HARISH TANDON

body2018
JUDGMENT : 1. Despite service there is no representation on behalf of the opposite parties. 2. Let affidavit-of-service filed today in Court be kept on record. 3. The instant revisional application is directed against an order No. 26 dated 22nd June 2017 passed by learned Civil Judge (Jr. Div), 2nd Court, Burdwan in Title Suit No. 294 of 2014 by which an application for acceptance of the written statement filed belatedly was rejected. 4. It is indicated in the impugned order that the defendant appeared in the said suit on 12th December 2014 and since thereafter was seeking time date after date and ultimately the written statement was filed on 28th November 2016. The Trial Court further held that there is no sufficient ground made out in the application so far as delay in filing the written statement is concerned and proceeded to dismiss the same. 5. My attention is drawn to the averments made in the said application as well as the submissions advanced before this Court. It is stated that because of the prolong illness, the petitioner could not instruct the learned advocate to prepare the written statement so that the same may be filed within the statutory period. It is further submitted before this Court that the learned advocate representing the petitioner was taking steps as the petitioner was unable to contact him for giving a proper instruction so that the suit may not proceed ex parte against him or the right of the petitioner is defeated in any manner. There is no quarrel that the explanation appears to be too cryptic yet the Court must consider the gravity of the same. No defendant would allow the suit to be decided ex parte more particularly when a decree for declaration is sought by the plaintiff which would not only effect his claim or right but shall have a serious repercussion on the generations to come. 6. Two provisos were introduced by the Rule Committee of the High Court to Order 8 Rule 1 of the Code of Civil Procedure. The third proviso enlarges the time indicated in the enabling provision and vest a further power upon the Court to extend the time beyond the said outer cap subject to satisfaction with regard to the unforeseen and compelling circumstances which prevented the defendant to file the written statement within the time frame. The third proviso enlarges the time indicated in the enabling provision and vest a further power upon the Court to extend the time beyond the said outer cap subject to satisfaction with regard to the unforeseen and compelling circumstances which prevented the defendant to file the written statement within the time frame. The discretion should be exercised judicially, reasonably and on legal parameters as opposed to arbitrarily and capriciously. 7. I am not oblivion of the fact that the higher forum should seldom interfere with the discretionary order passed by the Trial Court but the same is not a rigid rule. Even the Court finds that the Court below exercised or refused to exercise discretion, which would ultimately affect the rights of the parties, there is no difficulty in interfering with the impugned order. As indicated above, the explanation though appears to be scanty yet considering the nature of the claim this Court feels that the Trial Court ought to have exercised the discretion rested upon the learned Judge by the third proviso and should also balance the right of the plaintiff to have the suit disposed of early by imposing costs. 8. This Court, therefore, set aside the impugned order. 9. The application filed by the petitioner for acceptance of the written statement is allowed subject, however, to the payment of costs assessed at Rs. 25,000/- to be paid to the advocate-on-record of the plaintiff/opposite party in the Trial Court within a week from date. In default of the payment of cost within the time indicated hereinabove, this order shall automatically stand recalled and the order of the learned Trial Court shall revive. 10. In the event of compliance of the above condition, the Trial Court is requested to make efforts to dispose of the suit as expeditiously as possible, if necessary, shall decline an unnecessary adjournment to either of the parties and shall see that the same is disposed of within six months from the date of communication of this order. 11. With these observations, the revisional application is disposed of. 12. There shall be no order as to costs.