Calcutta High Court (Appellete Side)
2871/2010 on 30 November, 2010
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 11.10 C.O. 2871 of 2010 Mr. Abhijit Roy .. For the Petitioner.
Mr. M. K. Poddar .. for the Opposite Party.
Admittedly, written statement was not filed by the defendant within the period as prescribed under Order 8 Rule 1 of the Code of Civil Procedure. The defendant appeared in the instant ejectment suit on 5th August, 2008. Copy of the plaint was served upon the defendant on 24th September, 2008. The defendant ultimately filed written statement on 15th March, 2010.
The learned Trial Judge refused to accept the said written statement as the defendant failed to explain the reasons for such long delay in filing the written statement in the said suit.
Being aggrieved by the said order being no. 15 dated 1st July, 2010 passed by the learned Judge, 4th Bench, Small Causes Court at Calcutta in Ejectment Suit No. 230 of 2008-C, the defendant has come before this court with this application under Article 227 of the Constitution of India.
Heard learned advocate for both parties. Considered the materials on record including the order impugned.
Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the present case.
Though it is true that the defendant did not file the written statement within the period prescribed under Order 8 Rule 1 of the Code of Civil Procedure but fact remains that the written statement was filed within the extended period as per the order passed by the learned Trial Judge on 16th February, 2010 vide order no. 11. When the learned Trial Judge extended the period for filing the written statement by the defendant till 15th March, 2010, this court does not find any justification to pass the impugned order by refusing to accept the written statement though the said written statement was filed on 15th March, 2010. Admittedly, the order being no. 22 dated 16th February, 2010 passed by the learned Trial Judge remained unchallenged. As such, none of the parties can avoid the effectiveness of the said order.
Accordingly, this court holds that the learned Trial Judge was not justified in refusing to accept the written statement filed by the defendant in the instant case. However, considering the long delay in filing the written statement causing delay in disposing of the suit, the defendant is directed to pay compensatory cost of Rs. 2,000/- to the 2 plaintiff and/or the learned advocate on record of the plaintiff in the court below within two weeks from date. Payment of such cost will be condition precedent for acceptance of the written statement.
The revisional application is, thus, disposed of.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned advocate for both parties as early as possible.
(Jyotirmay Bhattacharya, J.)