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2018 DIGILAW 2142 (JHR)

Dukhi Mirdha v. Ramdas Mirdha

2018-09-26

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - Order dated 28.08.2018 records that the respondents have been validly served. Mr. Sudhansu Kr. Deo, the learned counsel appears for respondent nos.1 and 3 to 7. 2. The petitioner, who is defendant in Title Suit No.46 of 2016/ 144 of 2016 is aggrieved of order dated 30.11.2017 by which his application for accepting his written-statement has been rejected. 3. Title Suit No.46 of 2016/ 144 of 2016 has been instituted by Ram Das Mirdha and seven others for a decree for declaration of their title over schedule ''A'' and schedule ''B'' properties and a decree for delivery of possession of schedule ''B'' properties to the plaintiffs after evicting the defendant. Summons issued to the defendant was received by him on 19.06.2017 and he appeared in the suit on 16.11.2017. He has filed an application under section 148 CPC on 30.11.2017 for accepting his written-statement in the suit. 4. Order-Viii Rule 1 CPC provides that within 30 days of service of summons the defendant shall file his written-statement of defence. By the Code of Civil Procedure (Amendment) Act, 2002 this period of 30 days has been extended to 90 days by incorporating a proviso to Rule 1. By now it is well-known that the statutory period provided under Order-VIII Rule 1 CPC is binding on the parties but not on the Court [" Rani Kusum vs. Kanchan Devi and Others. , (2005) 6 SCC 705 "]. It has been held by the Supreme Court in a catena of judgments including the one in " Kailash vs Nanhku and Others. , (2005) 4 SCC 480 " that the provision under Order-VIII Rule 1 CPC is directory and not mandatory. In appropriate cases on an application by the defendant the trial court for the reasons to be recorded can permit a defendant to put his defence even beyond the statutory period as provided under Order-VIII Rule 1 CPC. 5. The petitioner has pleaded that he is a handicapped person suffering from various diseases and that is the reason why his written-statement of defence could not be prepared and filed within the statutory period provided under Order-VIII Rule 1 CPC. 5. The petitioner has pleaded that he is a handicapped person suffering from various diseases and that is the reason why his written-statement of defence could not be prepared and filed within the statutory period provided under Order-VIII Rule 1 CPC. The trial Judge by the impugned order dated 30.11.2017, without seeking a response from the plaintiffs on the defendant''s application dated 30.11.2017, has declined to accept his written-statement merely by observing that it does not appear justifiable to accept the written-statement of the defendant. It is also pertinent to record that the written-statement filed by the defendant was less than two months beyond the period provided under Order-VIII Rule 1 CPC. The subject-matter of Title Suit No.46 of 2016/ 144 of 2016 is landed properties admeasuring more than 22 acres of land. Evidently, the defendant has substantial interest involved in the suit. Normally, parties should be permitted to contest the suit on merits and a technical walk-over must be avoided. 6. Viewed thus, and for the reasons indicated hereinabove, the impugned order dated 30.11.2017 is set-aside. The written-statement filed by the defendant shall be taken on record. 7. The writ petition stands allowed.