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2018 DIGILAW 398 (GAU)

Jogendra Nath Boruah v. Atul Chandra Boruah

2018-03-06

SUMAN SHYAM

body2018
JUDGMENT & ORDER : Suman Shyam, J. Heard Mr. T. Chakraborty, learned counsel for the petitioner. I have also heard Mr. P. Khataniar, learned counsel representing the respondent. 2. This Revision Petition has been preferred against the order dated 20.04.2017 passed by the learned Civil Judge, Sivasagar in Petition Nos. 1247 and 1246 arising out of Money Suit No. 09/2015 whereby the written statement filed by the petitioner has been rejected. 3. It appears that the revision petitioner, who is the defendant in Money Suit No. 09/2015, had received summons in connection with the suit on 15.06.2015 but did not appear before the Court. Due to non-appearance of the petitioner, the suit had proceeded exparte against him. It was on 15.07.2016 that the petitioner had appeared and filed Written Statement along with a petition bearing No. 1246 under Order 9, Rule 7 of the Code of Civil Procedure and another Petition No. 1247 filed under Section 5 of the Limitation Act praying for condonation of delay. The petitioner had explained the reasons for which he could not appear earlier. Notwithstanding the same, by the impugned order dated 20.04.2017 the learned Civil Judge, Sivasagar had rejected the Written Statement filed by the petitioner while allowing him to take part in the proceeding and to cross-examine the plaintiffs witnesses and also to argue the case. 4. Mr. Chakraborty submits that there is no period of limitation for filing an application under Order 9, Rule 7 of the CPC and therefore, the Petition No. 1247, though filed on behalf of his client, was redundant in the eye of law. Insofar as the petition filed under Order 9, Rule 7 of the CPC, it is the submission of Mr. Chakraborty that having noted that the reason for previous non-appearance by the petitioner was on medical grounds, the learned Court below ought not to have rejected the Written Statement, more particularly after the same had been kept in the case record as per the order of the Court passed on 15.07.2016. 5. Mr. P. Khataniar, learned counsel for the respondent, on the other hand, submits that the petitioner is guilty of adopting dilatory tactics by avoiding appearance after receipt of summons only to frustrate the plaintiffs claim and that there is no valid ground to interfere with the order passed by the trial Court. Mr. 5. Mr. P. Khataniar, learned counsel for the respondent, on the other hand, submits that the petitioner is guilty of adopting dilatory tactics by avoiding appearance after receipt of summons only to frustrate the plaintiffs claim and that there is no valid ground to interfere with the order passed by the trial Court. Mr. Khataniar further submits that the Revision Petition should be dismissed with exemplary cost. 6. It appears from the record that the learned Court below had passed an order on 15.07.2016 directing that the Written Statement filed by the petitioner be kept in the case record. Admittedly, the plaintiff/respondent has not raised any objection under Order 8, Rule 1 of the CPC. Since the decision of the Hon'ble Supreme Court in the case of Kailash v. Nanhku & Ors., reported in (2005) 4 SCC 480 , law is well settled that the period of 90 days as mentioned in Order 8, Rule 1 of the CPC is directory in nature and the Court would have the power to enlarge time for filing Written Statement if the defendant succeeds in furnishing sufficient explanation for the delay. 7. In the present case, materials on record reveals that the Court below had permitted the petitioner to take part in the proceeding but only the Written Statement has been rejected. In the absence of any written objection filed by the plaintiff opposing the filing of Written Statement and in view of the order dated 15.07.2016 passed by the learned Civil Judge directing the Written Statement to be kept on record, I am of the considered opinion that it was not correct for the Court below to strike off the right of the defendant to submit Written Statement without recording cogent reason for doing so. Moreover, it is the undisputed position of fact that the evidence on behalf of the plaintiff is yet to commence. In this case the petitioner/defendant has already filed Written Statement on 15.07.2016. Therefore, if the petitioner/defendant has been allowed to take part in the proceeding, no prejudice, in the opinion of this Court, is likely to be caused to the respondent/plaintiff if the Written Statement is also taken on record, which in fact appears to have been already done on 15.07.2016. Under the circumstances, I am unable to persuade myself to agree with the view taken by the learned court below. 8. Under the circumstances, I am unable to persuade myself to agree with the view taken by the learned court below. 8. Consequently, this Revision Petition stands allowed. The impugned order dated 20.04.2017 is hereby set aside. The Written Statement filed by the defendant shall form part of the record. The trial of the Suit to proceed as per the provisions of the CPC. This order is, however, subject to fulfilment of the condition that the petitioner/defendant deposits cost of Rs. 2000/- (Rupees Two Thousand) in favour of the respondent/plaintiff before the Court below. 9. Both the parties would now appear before the trial Court on 02.04.2018. 10. The Revision Petition stands disposed of.