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2018 DIGILAW 2216 (JHR)

Kishun Bhuiyan v. Idmuddin Ansari

2018-10-04

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The learned counsel for the petitioners states that the deficit court-fee has now been furnished. 2. The petitioners who are defendants in Title Suit No.49 of 2012 have challenged various orders passed in the suit. Primarily, the petitioners are aggrieved of orders dated 04.07.2013 and 06.09.2013 by which they have been debarred from filing written statement. 3. Plea urged on behalf of the petitioners is that on account of negligence of their counsel they could not file the written statement within time. 4. In " Kailash Vs. Nanhku reported in , (2005) 4 SCC 480 ", the Hon''ble Supreme Court has held as under; 44. "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." 5. Evidently, negligence of the counsel for the petitioners is not a ground for permitting the petitioners to file their written statement of defence beyond the period prescribed under Order VIII Rule 1 CPC. Admittedly, the defendant no.2 appeared on 13.08.2012 and the defendant nos.1 and 3 have appeared on 27.09.2012 still they did not file their written statement for about one year and therefore they have been debarred from filing written statement. They filed an application on 20.12.2013 seeking recall of orders dated 04.07.2013 and 06.09.2013 which was also delayed by about 3 months. Not only that, when the suit was posted under Order VIII Rule 10 CPC they have again made a prayer for permitting them to file their written statement of defence which the trial Judge has declined by order dated 19.01.2016. 6. Mr. Manoj Kr. No.2, the learned counsel for the petitioners submits that Title Suit No.49 of 2012 has been instituted for a decree for declaration that parcha has been issued fraudulently by the Halka Karmachari in respect of raiyati lands of the plaintiffs in Case No.3 of 1969-70 and, therefore, if the parcha issued in the name of the defendants is cancelled the defendants would suffer irreparable loss and injury. 7. 7. From the proceedings in Title Suit No.49 of 2012 it appears that the petitioners had been negligent throughout and they have put the blame on their counsel. Five years after the petitioners were debarred from filing written statement, in my opinion, they cannot be granted permission to file written statement, which, by now would be more than 5 years beyond the statutory period provided under Order VIII Rule 1 CPC. 8. In the above facts, finding no ground to interfere in the matter the writ petition is dismissed.