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2019 DIGILAW 1632 (JHR)

Amrita Devi v. Arun Kumar

2019-09-16

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 29.09.2014 as also order dated 14.01.2016 passed in Title Suit No. 1 of 2014 have been assailed. 2. The brief facts, of the case, as per the pleadings made in the writ petition, is that title suit, being Title Suit No. 1 of 2014 has been filed by respondent/plaintiff for declaration of right and title over the suit property, in which, notice has been issued to the petitioners/defendants on 20.01.2014, which has been received by them sometime in March, 2013 and accordingly they have appeared before the trial Court on 15.04.2014 and thereafter written statement has been filed on 26.06.2014, but the trial Court has debarred the petitioners/defendants from filing written statement in Title Suit No. 1 of 2014 since it has been filed after lapse of period of statutory period, against which, the petitioners/defendants have filed petition dated 01.07.2014 for recall of order dated 26.06.2014, which has been rejected, against which, the petitioners/defendants have filed review petition under Section 148 of the Code of Civil Procedure, which was rejected vide order dated 14.01.2016; hence, the present writ petition has been filed by the petitioners. 3. This Court before going into the legality and propriety of the impugned orders, deem it fit and proper to make reference of Order VIII Rule (1) CPC, which reads as under: “1.Written Statement. – The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deem it, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons the defendants shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. From the above provision, it is evident that Order VIII Rule 1 provides that the defendant shall file written statement within thirty days from the date of service of summons on him provided that where the defendant fails to file the written statement within the thirty days from the date of summons upon him, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing but shall not be later than 90 days from the date of expiry of 30 days. 4. The provision of Order VIII Rule 1 was subject matter of judgment rendered in the case of Salem Advocate Bar Association, T.N. Versus Union of India reported in (2005) 6 SCC 344 wherein the Hon'ble Apex Court while laying down the proposition about mandatory or obligatory nature of the time schedule has been pleased to hold that the Court has wide power to “make such order in relation to the suit as it thinks fit”, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. Therefore, if the sufficient reason would be shown in order to get ends of substantial justice, the time schedule can be extended. 5. The Court proceeded to examine the legality and propriety of the impugned order and the grounds for not filing the written statement within time schedule but, it was filed on 93rd days. As would appear from the impugned order that the petitioner has made an application for getting certified copy of sale deed no. 1748 dated 25.04.1995 before the Registrar, Koderma but the same has only been supplied after lapse of more than 20 days due to which reason, written statement was not filed within 90 days. 6. It has further been contended that for proper adjudication of the dispute sale deed no. 1748 dated 25.04.1995 is an important document to the defence and as such waited for the supply of the certified copy. 6. It has further been contended that for proper adjudication of the dispute sale deed no. 1748 dated 25.04.1995 is an important document to the defence and as such waited for the supply of the certified copy. The trial Court however has reflected in the impugned order that no such reason has been shown for delay in filing the written statement but this Court, after going across the submissions made by the defendants as would appear from first page of the impugned order dated 29.09.2014 where it has been reflected about obtaining of sale deed no. 1748 dated 25.04.1995 and for obtaining the same it consumed more than 20 days, which ultimately led to delay in filing the written statement, but the trial Court has come to the conclusion that not receiving the sale deed no. 1748 dated 25.04.1995 was not such circumstances which was hurdle or preventing them to file written statement within stipulated period of time. In that view of the matter, the relief sought for by the defendants/petitioners has been rejected. 7. But the question here is that, it is the petitioners who know which document is necessary to bring on record for its adjudication at the time of filing of the written statement. However, if the matter would be at the appellate stage then the same would be different since it depends up the Court to look into the relevance of the said document but that is not the stage of suit rather the suit is at the very initial stage. This Court, therefore, is of the view that when the petitioner wants to rely upon the document, which according to the petitioner is relevant for the proper adjudication and for obtaining the same, some delay has been caused, it will be said to be sufficient reason for condonation in delay in filing the written statement, the trial Court ought to have taken into consideration that too there is delay of only three days and hence, this Court after considering the question of substantial justice is of the view that the impugned orders requires to be set aside in order to provide an opportunity to the petitioner to file written statement for proper adjudication of the suit. 8. From the report dated 16.11.2018 made by learned trial Court it appears that the suit is pending at the stage of plaintiff's evidence. 8. From the report dated 16.11.2018 made by learned trial Court it appears that the suit is pending at the stage of plaintiff's evidence. In view thereof, writ petition stands disposed of. 9. The written statement filed by petitioners/respondents may be treated to be in accordance with law.