Sree Sree Guru Gouranga ... vs Sree Bhakti Bikash Sajjan Maharaj
2023 Latest Caselaw 414 Cal

S/L 2
16.01.2023

Court No.652 SD CO 742 of 2018

Sree Sree Guru Gouranga Gandherbika Giridhari Jew & Anr.

Vs.

Sree Bhakti Bikash Sajjan Maharaj

Mr. Pradip Kumar Dutt Mr. Chanchal Kumar Dutta Ms. Krishna Mallick ... for the Petitioners.

Mr. Somnath Roy Chowdhury Mr. Siddhartha Sankar Mandal Ms. Arunima Das Sharma ... for the Opposite Party.

Being aggrieved and dissatisfied with the Order No.24

dated January 18, 2018 passed by the learned Civil Judge

(Senior Division), 1st Court at Krishnagar, Nadia in Title Suit

No.6 of 2016, present revisional application has been preferred.

The petitioner contended that the plaintiff/opposite

party filed a suit against the petitioner herein praying for

decree for permanent injunction against the petitioner from

disturbing the peaceful possession of the plaintiff over the suit

property. The writ of summons of the said suit was duly served

upon the defendant in March 2016.

The petitioner further submits that the petitioner is a

religious person and all the time was busy with the religious

activities in the Math and had no knowledge about the

procedure to be followed in filing the written statement within

the prescribed period and accordingly fully relied on the

learned advocate. The petitioner was sometimes called upon by

the learned advocate that the written statement could not be

filed and accordingly, an application requires to be filed for

extension thereof. The petitioner on the basis of such advice

signed few applications on different occasions. In the

meantime, the written statement was made ready and it was

filed before the learned trial judge for acceptance but the

learned Trial Judge by the impugned order dated January 18,

2018, was pleased to reject the application for extension of time

to file written statement and refused to accept the written

statement which had already been filed.

Mr. Pradip Kumar Dutt, learned counsel appearing on

behalf of the petitioner, submits that the learned Trial Judge

had acted illegally and with material irregularity by not

exercising his discretion vested on it. The petitioner is a

religious person engaged with religious institution and busy in

performing their religious activities and should not be treated

with general and/or private litigant and the trial court ought to

have exercised its jurisdiction in favour of allowing application

for extension of time. Accordingly, he prayed for setting aside

the order impugned and prayed for acceptance of written

statement and for giving the petitioner an opportunity to

contest the suit.

In this context, he has relied upon a judgment Shaikh

Salim Haji Abdul Khayumsab vs. Kumar and Others reported

in (2006) 1 SCC 46 and another judgment Bharat Kalra vs. Raj

Kishan Chabra which was passed on 09.5.2022.

Mr. Somnath Roy Chowdhury, learned counsel

appearing on behalf of the opposite party, submits that the

defendant/petitioner had not assigned any reason as to why he

could not file the written statement within the statutory period.

From the impugned order, it is clear that the

petitioner/defendant had taken several adjournments for filing

written statement but he did not file the written statement in

time nor has assigned any reason for that.

He further submits that when no reason has been

assigned by the petitioner for causing delay, it would not be

prudent to accept the written statement and in view of the

statutory provision, if the written statement filed by the

defendant is accepted at a belated stage, then ignoring statutory

provision, such acceptance would become automatic and it will

open a floodgate.

In this context, he relied upon paragraph 9 of the

judgment of Mohammed Yusuf vs. Faij Mohammad & Ors.

reported in (2009) 3 SCC 513.

He further submits that in the present case, though the

defendant/petitioner has not assigned any reason but even if a

different view on facts elicited is possible, such approach does

not permit interference in exercise of revisional jurisdiction by

this court under Article 227 of the Constitution of India.

In this context, he has referred paragraph 4 of the

judgment of Bhojraj Kunwarji Oil Mill and Ginning Factory

and Another vs. Yograjsinha Shankarsinha Parihar and

Others reported in 1984 AIR (SC) 1894.

I have considered the submissions made by both the

parties.

I am told that before the trial court the evidence on

behalf of plaintiff by P.W.1 and P.W.2 has been completed and

the case is fixed for hearing ex parte argument before the court

below.

It is true that under Order VIII Rule 1 the written

statement will have to be filed within 30 days from the date of

service of summons and the time for filing written statement

shall not be extended beyond certain period. It is also well-

settled that written statement filed after the expiry of the

statutory period cannot be accepted in a routine manner. The

opposite party in this case has also strenuously argued that the

defendant/petitioner has not assigned any reason as to why he

could not file the written statement in time. He further stated

though it has been agitated on behalf of the petitioner that

being a Sannasi he is not aware of the procedural aspect but it

is settled principle of law that ignorance of law is of no excuse.

However, considering the facts and circumstances of the

case, it appears that the defendant has ultimately filed the

written statement and the delay in filing of the written

statement can be compensated with costs but if the court

denied to accept the benefit of filing the written statement that

would be unreasonable in view of the fact that the defendant

will never get an opportunity to place his case for adjudication.

On the contrary, if the defendant has given an

opportunity to contest the suit by acceptance of the written

statement, the highest prejudice that may be caused to the

plaintiff would be that the suit will be decided after contested

hearing on merit. However, since the matter has already been

delayed for a considerable period of time, a time bound

direction should be passed for disposal of the issue involved in

between the parties.

In view of the above, CO 742 of 2018 is allowed subject

to costs of Rs.25,000/- which will be paid by the

petitioner/defendant to the plaintiff/opposite party, within a

period of four weeks from the date of communication of the

order.

The trial court is directed to accept the written

statement on payment of such costs by the

petitioner/defendant to the plaintiff within the prescribed

period, then after framing issue, learned court below will give

opportunity to examine and/or to re-examine plaintiff's witness

and will give opportunity to defendant to cross-examine

plaintiff's witness and after that will give opportunity to

defendant to examine his witness and plaintiff will also be given

opportunity to cross-examine defendant's witness. The court

below will make every endeavour to dispose of the suit

preferably within a period of six months from the date of

communication of the order. But if cost is not paid by the

defendant/petitioner to the plaintiff as above, the order

impugned will revive automatically.

Urgent photostat certified copy of this order, if applied

for, be given to the parties upon compliance of all necessary

formalities.

(Ajoy Kumar Mukherjee, J.)