Calcutta High Court (Appellete Side)
Smt. Subarna Paul And Another vs Sasti Charan Paul And Another on 31 August, 2018
1 S/l. 31.08.
59. Bpg 2018 In the High Court at Calcutta Civil Revisional Jurisdiction C.O. No.2625 of 2018 Smt. Subarna Paul and another Versus Sasti Charan Paul and another Mr. Sanjoy Mukherjee.
...for the petitioners.
Mr. Souradipta Banerjee.
...for the opposite parties.
The present challenge has been preferred by the defendants in a suit for declaration and injunction, challenging an order by which the written statement of the petitioners was refused to be accepted on the ground that no explanation for the delay caused in filing the said written statement was furnished and no condonation of the said delay was prayed for.
It is argued by learned counsel for the petitioners that the petitioners appeared in the suit on May 29, 2017 and their adjournment petitions were 2 allowed on several occasions, thereby extending the time for filing the written statement. It appears from the order-sheet that on several occasions the court below granted the petitioners time for filing the written statement. Ultimately, the written statement was filed on January 11, 2018, when the matter was fixed on March 27, 2018 for acceptance of such written statement. The subsequent two dates were further fixed for acceptance of the written statement. Lastly, by the impugned order dated July 12, 2018, the trial court refused to accept the written statement on the ground that the same was filed beyond the statutory time-limit and no explanation was furnished for such delay. It is argued on behalf of the petitioners that there was bona fide doubt in the minds of the petitioners as to whether there was deemed acceptance of the written statement by extending the time for filing the same. As such, the necessity of filing a separate application for such acceptance never dawned on the petitioners.
In controverting the said arguments, learned counsel for the plaintiffs/opposite parties argues that the petitioners got several opportunities, even after filing of the written statement, for taking out a proper 3 application for acceptance of the same, but failed to avail such opportunity by choosing not to take out any such application.
It is pointed out from the certified copy of the order-sheet, annexed to the present revisional application, that the matter was adjourned on January 11, 2018, March 27, 2018 and May 14, 2018, but the petitioners did not care to file any application for acceptance of the written statement. As such, it was submitted, the trial court was justified in refusing to accept the same.
A perusal of the proviso to Order VIII Rule 1 of the Code of Civil Procedure makes it amply clear that the court may extend the time for filing of the written statement beyond the statutory period, but such extension has to be for reasons to be recorded in writing. In the present case, it appears that no such reason was recorded by any of the previous orders, for extending the time for filing the written statement. As such, the contention of the petitioners that there was deemed acceptance of the written statement by the previous extension, does not hold good ground. In fact, the petitioners chose not to file any application for 4 acceptance of the written statement even when several dates elapsed after filing of the written statement.
However, it might be argued by the defendants/petitioners that there was bona fide reason for having some doubt as to whether a formal application was necessary for acceptance of the written statement, in view of the previous orders of extension of time. Although the veracity and acceptability of such a cause for delay in filing the written statement could only be considered by the trial court by hearing a proper application for acceptance of the written statement, it seems proper for the ends of justice to grant one opportunity to the defendants/petitioners at least to file such an application for acceptance of the written statement, before the defence of the petitioners is shut out.
Accordingly, C.O. No.2625 of 2018 is allowed on contest, thereby setting aside the impugned order and permitting the defendants/petitioners to file a formal application for acceptance of the written statement/condonation of delay in filing the written statement in the court below upon furnishing proper explanation for such delay therein, within a fortnight 5 from date. In the event such an application is filed within the time as specified above, the court below will consider the same in accordance with law and dispose of the same within September 30, 2018.
It is made clear that, in default of filing of such an application by the petitioners within a fortnight from date in the court below, the present order will stand automatically recalled and C.O. No.2625 of 2018 will be deemed to be dismissed, affirming the order of the court below without further reference to this Court.
In view of harassment suffered by the opposite parties, the petitioners will pay costs of Rs.20,000/- to the opposite parties within one week from date. In default of payment of such costs within one week from date, the impugned order will stand affirmed, also without further reference to this Court.
(Sabyasachi Bhattacharyya, J. )