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2024 DIGILAW 581 (CAL)

Ram Sahu @ Gadadhar Sahoo v. Kanak Barik

2024-03-15

CHITTA RANJAN DASH, PARTHA SARATHI SEN

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JUDGMENT : Partha Sarathi Sen, J. 1. In this appeal an ex-parte order and decree of eviction of the defendant as passed on 10.10.2023 by the Learned Judge, Bench-II, City Civil Court at Calcutta, in Title Suit No. 1908 of 2023 has been assailed. By the impugned order learned trial court decreed the aforementioned suit for recovery of Khas possession, permanent injunction, mesne profit and other consequential reliefs against the defendant directing the defendant to quit and vacate and deliver up the Khas and vacant possession of the suit property in favour of the plaintiffs within a period of two months from the date of passing of the said order. 2. In course of his submission Mr. Chatterjee, learned advocate for the defendant/appellant at the very outset draws attention of this Court to the impugned order as well as the previous orders as passed by the learned trial court in the said suit. It is contended by Mr. Chatterjee, learned advocate for the defendant/ appellant that on conjoint perusal of the aforesaid previous orders vis-à-vis the impugned order it would reveal that the learned trial court was pre-determined in not allowing the defendant to contest the said suit basically on the ground of his alleged delay in filing written statement. It is further argued that from the chronology of events as are reflecting from the said orders it would reveal further that the learned trial court was in haste for which the present appellant’s valuable right to challenge the finding of the learned trial court in not recalling its order dated 14.07.2023 have been violated. It is further argued by Mr. Chatterjee, learned advocate for the defendant-appellant that learned trial court has also failed to visualize the predicament of the defendant in not filing his written statement since on behalf of the defendant a specific plea was taken that the suit as pending before the learned trial court is barred and accordingly the plaint is liable to be rejected. Mr. Chatterjee further argued that learned trial court ought to have given the defendant/appellant an opportunity to contest the said suit by filing his written statement. Mr. Chatterjee thus submits that it is a fit case for allowing the instant appeal by setting aside the impugned order. 3. Per contra, Mr. Mr. Chatterjee further argued that learned trial court ought to have given the defendant/appellant an opportunity to contest the said suit by filing his written statement. Mr. Chatterjee thus submits that it is a fit case for allowing the instant appeal by setting aside the impugned order. 3. Per contra, Mr. Chakraborty, learned advocate appearing for the respondents/plaintiffs submits before this Court that since the order impugned has been challenged in an appeal and not under Order 9 Rule13 of the Code of Civil Procedure, the appellant/defendant is duty bound to assail such order on its merit. It is further argued by Mr. Chakraborty that in absence of any specific ground with regard to the merit of the instant appeal vis-à-vis alleged incorrect finding of the learned trial court, the instant appeal may be dismissed in limine. Drawing further attention of ours to Order No. 1 to Order No.8 as passed in the said suit it is argued by Mr. Chakraborty, learned advocate for the respondents/plaintiffs that even after lapse of the statutory period of filing written statement the defendant had not come forward with his written statement along with a petition for acceptance of written statement beyond the statutory period and thus learned trial court is very much justified in proceeding with the said suit ex-parte. Mr. Chakraborty thus submits before this Court that it is a fit case for dismissal of the instant appeal. 4. On perusal of the entire materials as placed before us we find that before the learned trial court the defendant appeared on 11.11.2022 and took time for filing written statement. It appears further that even after lapse of 90 days he did not care to file his written statement for the reason best known to him. It reveals further that on 21.03.2023 he had come forward with an application under Order 7 Rule 11 of the Code of Civil Procedure which was rejected by the learned trial court vide its Order No.7 dated 14.07.2023. It appears further that on 11.09.2023 the said suit was taken up for ex-parte hearing and after recording of evidence on the said day the learned trial court fixed 10.10.2023 for passing necessary order. 5. It appears further that on 11.09.2023 the said suit was taken up for ex-parte hearing and after recording of evidence on the said day the learned trial court fixed 10.10.2023 for passing necessary order. 5. It reveals further that immediately after passing of the aforesaid order on the self same day i.e. on 11.09.2023 the defendant/appellant herein came forward with an application praying for recalling of the order dated 14.07.2023 with a further prayer to allow him to file his written statement and on such filing, the learned trial court fixed the hearing of the said petitions on the date fixed i.e. on 10.10.2023. On the day of passing of the impugned order learned trial court after hearing the said two applications of the defendant rejected the said two applications dated 11.09.2023 and immediately thereafter proceeded to pass the impugned order. 6. It appears to this Court that apparently there is no illegality and/or irregularity on the part of the learned trial court in passing the impugned order immediately after rejection of the two petitions of the defendant as filed on 11.09.2023 since on perusal of the provision of Order 7 Rule 11 CPC it does not transpire to us that filing of an application under Order 7 Rule 11 CPC by a defendant gives any liberty to such defendant not to file his written statement within the statutory period till disposal of the said application for rejection of the plaint. 7. In considered view of us however, since the defendant has been deprived of his valuable right to assail the said order of rejection of his two petitions especially when a valuable right of the defendant for not allowing him to contest the said suit has been taken away by the learned trial court, learned trial court acted in a haste while passing the impugned order. 8. Admittedly, the legislatures in their own wisdom has incorporated the provisions of Order 8 Rule 1 thereby limiting time for filing written statement not later than 90 days from the date of service of summons upon the defendant. However, it has been held by the Hon’ble Supreme Court of India in the reported decision of Kailash vs. Nankhu reported in (2005) 4 SCC 480 that such mandate of the legislature is directory in nature and can be extended in exceptional cases but not in routine manner. 9. However, it has been held by the Hon’ble Supreme Court of India in the reported decision of Kailash vs. Nankhu reported in (2005) 4 SCC 480 that such mandate of the legislature is directory in nature and can be extended in exceptional cases but not in routine manner. 9. In view of the discussion made hereinabove, we thus hold that the defendant/appellant before us is entitled to get an opportunity to contest the said suit even though the statutory period for filing his written statement is over. 10. In view of the discussion made hereinabove we are thus inclined to allow the instant appeal however, considering the conduct of the defendant on strict terms. 11. As a result the instant appeal succeeds and is hereby allowed. 12. Consequently, the impugned Order No.9 dated 10.10.2023 as passed by learned Judge, Bench-II, City Civil Court at Calcutta, in Title Suit No.1908 of 2023 is hereby set aside subject to payment of cost of Rs.25,000/-out of which Rs.20,000/-is to be paid by the defendant/appellant to the plaintiffs/respondents herein and remaining Rs.5000/-is to be deposited with the City Courts’ Bar Association, Calcutta. It is further directed that such cost(s) are to be deposited within a period of 10 days from the date of passing of this judgement. 13. It is also made clear that in the event such cost is not deposited within the period as mentioned above it will be presumed that this Court has not passed any favourable order in favour of the present appellant in this appeal. 14. Defendant is further directed to appear before the learned trial court within a fortnight from the date of passing of this judgement along with his written statement and the receipts showing payment of cost as directed. 15. Upon such filing of written statement and receipts regarding payment of cost, learned trial court shall accept such written statement and thereafter shall frame issue within a fortnight. Learned trial court is further directed to conclude the hearing of Title Suit No.1908 of 2023 in de-die-diam manner without granting unnecessary adjournments to either sides and shall pass judgment in Title Suit No.1908 of 2023 within a period of six months from the date of communication of this judgement. 16. Parties to act on the server copy of this judgement. 17. 16. Parties to act on the server copy of this judgement. 17. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities. I agree, Chitta Ranjan Dash, J.