Orissa High Court
Girish Chandra Ray vs Umakanta Mohanty And Ors. on 19 November, 2004
Equivalent citations: 99(2005)CLT662
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. This Writ Petition has been filed invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India, assailing the Order dated 5.4.2004 passed by the Civil Judge (SD), Puri in C.S. No. 182 of 2003.
2. The petitioner as plaintiff has filed the aforesaid suit under Section 6 of the Specific Relief Act with a prayer for recovery of possession. Notice in the suit was issued to the defendants and the suit was posted to 11.12.2003 for filing of written statement. Unfortunately on the said date on B. B. Misra, a Senior Advocate of Puri Bar expired. The advocate on record for the defendants in the suit was attached to the office of said B. B. Misra. Due to the sad demise of the Senior Advocate, the advocate for the defendants could neither appear nor could file the written statement. Consequently the defendants were set ex parte and the suit was adjourned to 5.2.2004 for ex parte hearing. On the said date the written statement was filed along with a petition praying for setting aside the ex parte order and to accept the written statement. The Court exercising its discretion recalled the order setting aside the defendants ex parte and the accepted the written statement. The plaintiff is aggrieved by the said order.
3. According to Mr. Sahoo, Learned Counsel appearing for the petitioner, under Order 8, Rule 1 of the Code of Civil Procedure, a defendant is required to file his written statement within thirty days for the date of service of summons on him. The said rule further stipulates that if the Court is satisfied, for reasons to be recorded in writing, it may allow the defendant to present his written statement subsequently, but not later than ninety days from the date of service of summons. According to Mr. Sahoo the date fixed by the Court, i.e., 11.12.2003, the filing of written statement was also beyond the mandatory period as specified under Order 8, Rule 1 of the Code and as such the Court below acted illegally and with material irregularity in accepting the written statement. Relying upon the decision of the Supreme Court in the case of Dr. J.N. Merchant and Ors. v. Shrinath Chaturvedy, AIR 2002 SC 2931, Mr. Sahoo submitted that if the statute has fixed a time, Court has no jurisdiction to extend the same.
4. No doubt under Order 8, Rule 1 of the Code a defendant is required to present his written statement within thirty days from the date of service of summons and under no event later than ninety days. In the present case, however, as submitted by Mr. Sahoo, the date fixed by the Court for filing of written statement was beyond ninety days. Thus no laches can be attributed to the defendants. Unfortunately, however, on the said date a senior advocate expired and due to reasons beyond control the defendants could not file the written statement and consequently they were set ex pane and the suit was adjourned to 5.2.2004. On the said date, however, the written statement was filed along with a petition to accept the same and to recall the order setting the defendants ex parte. The Court below by a reasoned order allowed the petition, recalled the order and accepted the written statement.
5. The moot question that arises for consideration in this case is as to whether the Court can accept a written statement filed beyond ninety days in view of the specific provision of Order 8, Rule 1 of the Code. For answering this questions, it would be prudent to refer to the relevant provision of order 8, Rule 9, CPC which reads as follows :
"No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
6. A conjoint reading of Order 8, Rule 1 and Order 8, Rule 9, CPC leads to an irresistible conclusion that the stipulation of ninety days from the date of service of summons for filing of written statement by the Legislature is not an iron-tight jacket. Under certain circumstances if the Court thinks fit, it may in a given case require a written statement to be filed by any party and fix a time of not more than thirty days for presenting the same. In the present case, as has been stated earlier, the Court below after considering the facts and circumstances exercised its discretion to accept the written statement. Such acceptance of written statement can be treated to be one under Order, Rule 9, CPC. Even otherwise, jurisdiction of the Court either to accept a written statement or not being discretionary, the same has to be exercised in a judicious evaluation of the facts and circumstances of each case. If the Court on evaluation of the facts and circumstances thinks it just and appropriate to accept a written statement after the period stipulated in Order 8, Rule 1, CPC and exercises its discretion to subserve the ultimate cause of justice and to avoid multiplicity of litigations, the same should not be interfered with in exercise of power of superintendence conferred under Article 227 of the Constitution. There can be no straight-jacket formula for accepting or not accepting a written statement filed late. In the event Court thinks it fit, it can in exercise of power conferred under Order 8, Rule 9, CPC call upon the defendant to file written statement within thirty days from the issue of such direction in order to facilitate efficacious and complete adjudication of the inter se disputes.
7. Jurisdiction of this Court under Article 227 of the Constitution of India should be sparingly used, and only when this Court finds that there is an error apparent on the face of the record and/or the order passed causes such prejudice which otherwise cannot be remedied the order can be interfered with. In the present case, I do not find any reason to interfere with the discretion exercised by the Court below. I also do not find any infirmity or illegality in the impugned order and, therefore, I am not inclined to interfere with the same.
8. The Writ Petition is accordingly dismissed.