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2018 DIGILAW 1812 (JHR)

Nizam Ansari @ Nazzo Ansari v. Mustkin Ansari

2018-08-09

SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - The petitioner, who is defendant in Title Partition Suit No.48 of 2008, is aggrieved of order dated 19.01.2012 by which his prayer for accepting his written statement has been declined. 2. Title Partition Suit No.44 of 2007 was filed before the Settlement Officer, Dumka which was transferred to the Court of Sub-Judge, Godda and registered as Title (Partition) Suit No.48 of 2008. It was instituted for a preliminary decree for partition of schedule-A property to the extent of half share for the plaintiffs in the suit property. The petitioner appeared in the suit on 16.02.2008 but did not file his written statement inspite of several opportunities granted to him. Finally, he filed an application on 18.02.2010 alongwith a written statement for taking his written statement on record. This application has been dismissed by the impugned order dated 19.01.2012. 3. The learned counsel for the petitioner submits that on account of default on the part of the petitioner''s lawyer, written statement on behalf of the defendant no.1 was not filed within the statutory period as provided under Order VIII Rule 1 CPC and there were several miscellaneous petitions pending by that time. 4. Order VIII Rule 1 CPC provides that within 30 days of service of summons upon him the defendant shall file his written statement of defence. This period of 30 days may be extended but not later than 90 days, for the reasons recorded by the trial Judge and on such condition as deem fit and proper. In his application dated 18.02.2010 except stating that his lawyer did not file written statement and, therefore, the defendant no.1 changed his lawyer who has filed the written statement, no other reason has been indicated by the defendant no.1 for not filing his written statement within the extended statutory period of 90 days. No doubt, time period prescribed under Order VIII Rule 1 CPC is directory and not mandatory, permission to file written statement beyond the period prescribed under Order VIII Rule 1 CPC must be in exceptional cases [refer " Kailash vs. Nanku , (2005) 4 SCC 480 "]. No doubt, time period prescribed under Order VIII Rule 1 CPC is directory and not mandatory, permission to file written statement beyond the period prescribed under Order VIII Rule 1 CPC must be in exceptional cases [refer " Kailash vs. Nanku , (2005) 4 SCC 480 "]. On default by the counsel for a party it needs to be indicated that in Paragraph no.44 of the reported judgment in "Kailash" the Supreme Court has held that in a case where it is found that the defendant or his counsel was negligent permission to file written statement beyond the statutory period cannot be granted. 5. In the above facts, finding no infirmity in the impugned order dated 19.01.2012, the writ petition is dismissed.