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2023 DIGILAW 947 (JHR)

Amrit Deepak Kumar Singh v. Sudesh Rakesh Tirkey

2023-07-31

PRADEEP KUMAR SRIVASTAVA

body2023
JUDGMENT : Inspite of service of notice, respondent did not turn up to contest this case. 2. The instant application under article 227 of the Constitution of India has been filed for quashing the order dated 26.05.2017, passed in original Suit No. 599 of 2015 passed by Civil Judge, Senior Division, V, Ranchi (hereinafter called the impugned order), whereby and whereunder the defendant no.1/petitioner no.1 has been debarred from filing written statement. 3. In compliance of previous order dated 24.07.2023, no fresh vakalatnama has been filed by the respondent to contest the case. 4. Heard learned counsel for the petitioner and State. 5. It is submitted that on 19.09.2016 an application under Order XXII Rule 10 A CPC was filed by present petitioner/defendant no. 1 intimating the court regarding death of defendant no. 2, who died on 17.08.2016. Thereafter, dates were fixed on 26.05.2017 for filing rejoinder by the plaintiff but no rejoinder was filed. Petitioner presented his application before the learned trial court praying therein to file written statement copy of which was duly served upon respondent no.1, but the learned trial court refused to take the same on record and passed the impugned order without adverting to the real State of affairs including circumstances of the petitioner’s inability and other reasonable grounds. The impugned order was passed in most mechanical manner without assigning any valid reasons for not deciding the application under order 22 Rule 10A CPC rather passing the order of debarring the petitioner from filing his written statement, hence impugned order is erroneous, devoid of reasons and cryptic in nature which is fit to be set aside and the petitioner may be permitted to place on record his written statement and the suit may be heard on merits. 6. Keeping in view the aforesaid point of argument and on perusal of record, it appears that suit was instituted on 16.10.2015. After admission and service of notice for the first time, defendant no. 1 and 2 appeared on 18.07.2016 and filed an application for further time for filing their written statement. Again on next date, i.e. 12.08.2016 prayer for time to file written statement was allowed. On 19.09.2016 petition under Order XXI Rule 10 A was filed by the present petitioner informing the court about the death of his brother, (Defendant No.2) and necessary action may be taken by the plaintiff. Again on next date, i.e. 12.08.2016 prayer for time to file written statement was allowed. On 19.09.2016 petition under Order XXI Rule 10 A was filed by the present petitioner informing the court about the death of his brother, (Defendant No.2) and necessary action may be taken by the plaintiff. The Court allowed the plaintiff to file rejoinder. Thereafter, case was transferred to another Court, where rejoinder was filed on 23. 02.2017 and there was no direction for filing written statement by the present petitioner vide impugned order dated 26.05.2017. 7. Defendant nos. 1 and 2 were debarred from filing written statement inspite of communication about death of defendant No. 2 and Plaintiff was directed to take proper steps fixing the case on 03.07.2017 for further steps by plaintiff. 8. The impugned order is self-explanatory that inspite of pendency of application under Order XXII Rule 10A CPC and receipt of its rejoinder, it was not disposed of and in spite of communication about death of the respondent no. 2, he was also debarred from filing written statement. It is obvious that the written statement was not filed by the petitioner within time prescribed under Order VIII Rule 1 of the CPC. 9. In the case of Atcom Technologies Ltd. Vs. Y.A. Chunawala & Co. reported in (2018) 6 SCC 639 , the Hon’ble Supreme Court has held as under:- “19. It has to be borne in mind that as per the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period up to ninety days from the date of service of summons for sufficient reasons. Order 8 Rule 1 of the Code of Civil Procedure, 1908 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 same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” 20. This provision has come up for interpretation before this Court in number of cases. No doubt, the words “shall not be later than ninety days” do not take away the power of the court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344 : (SCC p. 364, para 21) ““21. … There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, 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. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.” 10. In view of aforesaid discussion and reasons and keeping in view the legal principle, I find that impugned order is not sustainable under law, perverse and cryptic in nature, which is hereby set aside and this application is allowed. Petitioner is directed to file his written statement before the learned trial court within one month from the date of receipt of this order.