Patna High Court - Orders
Manoj Kumar Pandey & Ors vs Kaushalya Devi & Ors on 8 May, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8321 of 2014
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Manoj Kumar Pandey & Ors
.... .... Petitioner/s
Versus
Kaushalya Devi & Ors
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ajay Kumar Sharma
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
2 08-05-20141. Heard the learned counsel, Mr. Ajay Kumar Sharma for the petitioner.
2. By the impugned order dated 14.04.2010 / 15.04.2010, the learned Munsif, IIIrd Chapra refused to recall the ex.-parte order dated 01.12.2003 whereby the petitioner were debarred from filing written statement and also refused to accept written statement filed by the petitioners on 25.08.2009.
3. The learned counsel relying on the decision of the Hon'ble Supreme Court in the case of Kailash Vs. Nanhku 2005 (4) SCC 480 submitted that the provision as contained in Order 8 2 Patna High Court CWJC No.8321 of 2014 (2) dt.08-05-2014 2/4 Rule 1 C.P.C. is not mandatory and the Court has the jurisdiction to extend the period prescribed in Order 8 Rule 1 of the Code of Civil Procedure. In the present case, the Court below without considering the settled principle of law rejected the application filed by the petitioner. The learned counsel submitted that the petitioners are ready even to pay the cost.
4. It may be mentioned here that subsequently this case has been considered by the Supreme Court again in the case of Mohammed Yusuf Vs. Faij Mohammad 2009 (3) SCC 513 and it has been held that 'there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context in the case of Kailash (Supra) it was stated that the extension of time beyond 90 days was not automatic and that the Court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the Code and the power inhering in the Court in terms of Section 148 of the Code. The case of Kailash (Supra) is no authority for receiving written statements, after the expiry of 3 Patna High Court CWJC No.8321 of 2014 (2) dt.08-05-2014 3/4 the period permitted by law, in a routine manner.'
5. Recently, the Hon'ble Supreme Court in the case of Sandeep Thapar Vs. SME Technologies (P) Ltd. 2014 (2) SCC 302 reiterated the same thing wherein the case of Kailash (Supra) has been considered. It may be mentioned here that in the case of Md. Yusuf (Supra), the delay was 3 years. The trial Court refused to permit to filing writing statement. The High Court in exercise of supervisory jurisdiction set aside the order of the trial Court. The Hon'ble Supreme Court held that High Court can set aside orders passed by Courts below only on limited ground of illegality irrationality and procedural impropriety, then set aside the order of the High Court and the order of the trial Court was restored. In the case of Sandeep Thapar (Supra), the Hon'ble Supreme Court held that 'a prayer for extension of time shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also to be placed on record in writing, howsoever briefly, by the Court on its being satisfied.' Considering the facts and circumstances of that case, the Hon'ble Supreme Court allowed on payment of cost of Rs.50,000/-. 4 Patna High Court CWJC No.8321 of 2014 (2) dt.08-05-2014 4/4
6. In the present case at out hand, the petitioners themselves filed intervention application which was allowed on 20.06.2003, thereafter they did not file written statement. They were debarred from filing written statement on 01.12.2003. Thereafter, also they did not appear and pray for recall of the order. After 6 years, they appeared and filed the application for recall on 25.08.2009 and the explanation has been given that the petitioners signed blank paper and handed over it to the Advocate clerk who did not file the written statement. The Court below considering this explanation as not sufficient has rejected the application. Therefore, in supervisory jurisdiction in view of the above facts and circumstances of the case, this explanation cannot be accepted and the impugned order passed by the Court below cannot be interfered with. Thus, this writ application is dismissed.
(Mungeshwar Sahoo, J) Sanjeev/-