Calcutta High Court (Appellete Side)
Sk. Azad Ali vs Sk. Razzak Ali & Anr on 28 April, 2016
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
1 5 28.04.2016
AB Court No.22 C. O. 592 of 2010 Sk. Azad Ali Vs Sk. Razzak Ali & Anr.
Mr. Anit Kr. Rakshit ....for the Petitioner.
Mr. Mukteswar Maity ....for the O. P. The present civil revisional application is directed against the order no. 31 dated 28.1.2010 passed by the Court of learned Civil Judge (Junior Division), Haldia in T. S. No. 134 of 2007.
By the said order, the trial court allowed the prayer of the defendant nos.1 and 2 in the suit, who are the opposite party nos.1 and 2 in the present case for acceptance of their written statement filed long after the statutory period and also after the period extended by the Court for the purpose.
Mr. Rakshit appearing for the petitioner submits that both the opposite parties received the summons of the case and appeared also in the suit, but they have not filed their written statement promptly and within the prescribed period and for such reason the suit was 2 rightly fixed for ex parte hearing.
He has further pointed out that the similar prayer of the present opposite parties was rejected on 21.8.2009, but the trial court allowed the same prayer without assigning any specific reason for such change of view.
Mr. Rakshit has submitted further that according to the provision in Order 8 Rule 1 CPC, written statement has to be filed within a prescribed period and such a provision of law was totally ignored by the trial court and for such reasons the order of the trial court impugned in this revisional application is not sustainable in law.
In reply, Mr. Maity appearing for the opposite party nos.1 and 2 has submitted that prior to 17.3.2009 service upon the opposite parties were not satisfactory and as such, fresh notice was ordered to be issued after which the opposite party nos.1 and 2 appeared in the suit and filed their written statement jointly.
He has further submitted that hearing a suit ex parte is not a rule, but an exception and the petitioner is not likely to be prejudiced in any way if the opposite 3 party nos.1 and 2 are given the opportunity to contest the suit especially when the written statement has already been filed by the opposite party nos. 1 and 2.
On perusal of the orders passed in the trial court, it is found that summons were satisfactorily served upon defendant nos.1, 4 and 5 prior to 15.11.2008 as noted in order no.14, but defendant no.1 did not appear thereafter and hence, the suit was fixed for hearing ex parte by that order. The suit proceeded ex parte thereafter. Some witnesses were examined ex parte, some documents were exhibited and thereafter the suit was fixed for hearing argument on 17.3.2009. However, on 17.3.2009 the trial court came to a view that service upon the defendant nos.1 to 6 were not satisfactory and hence, the trial court directed for a fresh service upon them.
Defendant no.2 appeared on 21.4.2009 and prayed for time for filing written statement, which was allowed and the suit was fixed on 28.5.2009 for filing written statement. On 28.5.2009 both the defendant nos.1 and 2 jointly prayed for time for filing their written statement which was allowed and the case was fixed on 6th July, 2009 for filing written statement by 4 the defendant nos.1 and 2 and thereafter the case was again adjourned to 21.8.2009 for filing written statement. On 21.8.2009 the defendant no.2 again prayed for time for filing his written statement, but the prayer was rejected as the statutory period for filing written statement expired by that time. Ultimately the defendant nos.1 and 2 submitted their joint written statement on 21.11.2009 along with a prayer for its acceptance.
The said petition was finally heard on 28.1.2010 and by the order passed on that day, the prayer of the defendant nos.1 and 2 for acceptance of the written statement was allowed subject to the payment of cost of Rs.200/-. The said order dated 28.1.2010 is under challenge in the present revisional application.
The reason shown in the application of the defendant nos.1 and 2 for the delay in filing the written statement was that the defendant no.1 after service of notice had to visit Rajasthan for different reasons and the defendant no.2 was quite ignorant of the laws and for such reasons the written statement could not be filed in time. As discussed above, both the defendant nos.1 and 2 had the knowledge of the suit long before 5 the filing of their written statement.
The trial court in its order impugned has cited two decisions, one reported in 2009(2) SC CHN 1 (Mohammed Yusuf Vs Faji Mohammad) and the other reported in 2009 (1) ICC 789.
After considering the judgment reported in 2009(2) SC CHN 1 the trial court came to a view that time for submission of written statement can be extended only in rare and exceptional cases and the causes shown by the defendant nos.1 and 2 did not fall in any such rare or exceptional cases, but contradicting his own view learned trial judge allowed the defendant's prayer on the basis of another judgement reported in 2009 (1) ICC 789, which has laid down some general principles only in the matter.
On 21.8.2009 the prayer of the defendant no.2 for time for filing the written statement had been rejected by the trial court on the ground that the statutory period stood over, but by the order impugned, the trial court allowed the same prayer without assigning any reason for such change of view. The fact that on the first occasion the prayer was moved by the defendant no.2 alone and the prayer, which was allowed 6 on 28.l.2010 by the order impugned, was moved jointly by the defendant nos.1 and 2 made no difference.
In the impugned order itself, it has been noted by the learned trial judge that at the relevant time the defendant nos.1 and 2 had been pursuing another suit being T.S. no. 66 of 2008 diligently in which the plaintiff in the present suit was a party and as such, the plea of the defendant nos.1 and 2 that one of them was at Rajasthan at that time and the other was ignorant of the laws, were all baseless. In fact, the order dated 28.1.2010 is full of self-contradictions.
Going to another State for some personal purposes and ignorance of law are definitely not justified reason for failure to submit the written statement in a case by a defendant within the stipulated period. The question of prejudice is not relevant since the law is very much clear in the subject. Awarding of costs is not always an effective remedy.
Having, thus, considered all the facts and circumstances of the case and the contentions of the learned Advocates on both sides, I have no hesitation to hold that the order dated 28.1.2010 passed by the learned Civil Judge, (Jr. Division), Haldia in T.S. No. 7 134 of 2007 is not sustainable in law. The order is, therefore, set aside and the present revisional application is, accordingly, allowed without any order as to the costs.
However, the opposite party nos.1 and 2 (defendant nos.1 and 2 in the suit) may still contest the suit on the point of law as far as permissible in law, if advised.
It is a very old suit and hence, the trial court is requested to take all possible steps for the expeditious disposal of it.
The department is directed to communicate a copy of this order to the learned court below.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Tapash Mookherjee, J.) 8