Calcutta High Court (Appellete Side)
652 2023 Smt. Juggan Devi @ Maitri ... vs 5 Sri Dewnath Shaw & Anr on 24 July, 2023
Ct.
No. 24.07 C.O. 4379 of 2018
652 2023 Smt. Juggan Devi @ Maitri Devi & Ors.
-Versus-
5 Sri Dewnath Shaw & Anr.
akb
Mr. Sayan Sinha
Mr. Soham Kumar ...For the Petitioners
Mr. Pinaki Ranjan Mitra ...For the Opposite Parties
This application under Article 227 of the
Constitution of India has been filed by the petitioners against
the order dated 13th December, 2018 passed by the learned
Civil Judge (Junior Division), 3rd Court at Howrah in Title
Suit No. 145 of 2014. By the impugned order the
application filed by the plaintiffs under order VIII Rule 10
seeking to pronounce judgment against defendant No.1, who
failed to submit written statement nearly within four years
from their appearance, was rejected on contest by the learned
Court below and thereby accepted the cause shown for delay
by the defendant No. 1, subject to payment of cost of Rs.
2,000/- to be paid by the defendant No. 1 to the plaintiffs.
Mr. Sayan Sinha, learned Counsel appearing on
behalf of the petitioners submits that petitioners herein filed
aforesaid suit for decree of declaration and permanent
injunction against the defendant. The defendant/opposite
party No. 1 entered appearance in the said suit on 13th June,
2014 and filed an application under Order VII, Rule 11 read
with Section 151 of the Code of Civil Procedure seeking
rejection of the plaint.
The petitioners herein filed written objection
against the application under Order VII, Rule 11 and the
Court below ultimately on 9th August, 2016 was pleased to
reject the defendant's application under Order VII, Rule 11
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of the Code.
The petitioners further submit, surprisingly since
their appearance the defendant No. 1 willfully and
deliberately did not file written statement in the said suit
after long expiry of the statutory period. Finding no other
alternative, the petitioners filed impugned application under
Order VIII, Rule 1 and 10 read with Section 151 of the Code
of Civil Procedure.
On 7th May, 2018 about four years after their
appearance, the defendants / opposite parties filed written
statement but they did not file any show cause explaining
such prolonged delay in filing the written statement in the
said suit.
On 7th August, 2018 the defendant / opposite party
No. 1 filed a show cause petition allegedly explaining delay
in filing such written statement. The petitioners herein filed
written objection against the show cause petition /
application filed by the defendant/opposite party No. 1 and
the learned Court below by the impugned order has been
pleased to accept the show cause filed by the opposite party
No. 1 / defendant No. 1, subject to payment of Cost of Rs.
2,000/-.
Mr. Sinha, further submits that the Court below
acted illegally and with material irregularity in not applying
his judicial mind properly in passing the impugned order.
Learned Court below erred in holding that it is an omission
on the part of the Advocate for the defendant No. 1, who
failed to inspect the case records and failed to ascertain
whether the written statement was filed or not and for such
omission on the part of the Advocate the litigant must not
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suffer and he further erred in holding that the defendant No.
1 has a right to contest the suit which cannot be curtailed at
this stage. In fact, the learned Court below allowed the said
application filed by the petitioners, without any reason.
Learned Court below did not consider that the amended
proviso to Order VIII, Rule 1 of the Code of Civil Procedure
was implemented for expeditiously trial and the defendant
cannot take indefinite time to file written statement in order
to cause delay in disposal of the suit. The learned Court
below further committed mistake in observing that the
provisions under Order VIII, Rule 1 of the Code is not
mandatory. Accordingly, learned Counsel for the petitioners
prayed for setting aside the order impugned.
Mr. Pinaki Ranjan Mitra, learned Counsel
appearing on behalf of the opposite party No. 1 submits that
it is an omission on the part of the learned Advocate of the
defendant No. 1 to overlook the fact that written statement
was not filed and it is not an intentional omission on the part
of the defendant No. 1. He further submits that mere delay
in filing the written statement will not take away the right of
the defendant No. 1 to contest the suit. In fact defendant No.
1 earlier filed an application for rejection of the plaint which
was disposed of on 9th August, 2016. Thereafter, the Court
below had taken up the application for temporary injunction
and the Court below never fixed the suit for peremptory
hearing and as such learned Counsel appearing on behalf of
the defendant No. 1 failed to inspect the case record and
could not ascertain whether the written statement was filed
or not. He further submits that the defendant No. 1 has right
to contest the suit which cannot be curtailed for latches, if
any, on the part of his learned Advocate. He further submits
in compliance with the order impugned he has already
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deposited the cost of Rs. 2,000/- by way of challan on 1st
March 2019. A copy of such challan produced in Court
today is taken on record.
Having heard the learned Counsel appearing on
behalf of the parties and in view of the facts and
circumstances of the case it appears that the defendant no.1
appeared in the suit on 13.06.2014 and filed application for
rejection of plaint, which was disposed of on 9th August,
2016. It further appears that thereafter suit was posted for
injunction hearing and impugned order even shows that
prayer for temporary injunction has not yet been disposed
of and next date is fixed for hearing application for
temporary injunction, where defendant No.1 is duly
contesting by filing written objection and apparently record
does not reveal that delay in filling W.S is intentional to
make any unlawful gain or due to acceptance of cause
shown by defendant No.1, plaintiff got prejudiced to such
an extent, which cannot be compensated by cost.
Rule 10 of order VIII though couched with the
word "shall" to mean that it should be obligatory on the
court to pronounce Judgment when defendant failed to
present written statement within the time or time fixed by
court but at the same time, the words "or make such order
in relation to the suit as it thinks fit" gives wide discretion to
court in the matter. In fact time limit fixed under order VIII,
Rule 1is not a substantive law but it is procedural law,
legislated to cure the mischief of unscrupulous defendants
adopting dilatory tactics, thereby delaying disposal of cases,
causing in conveniences to the plaintiff. Facts
and
circumstances of the case herein does not suggest that the
written statement filed by defendant at a belated stage,
caused delay in disposal of suit, since plaintiffs prayer for
temporary injunction is still pending for disposal. It is well-
settled that in an adversarial system a party should not
ordinarily be denied the opportunity of participating in the
process of justice dispensation, specially when by filing
written statement, defendant has expressed his intention to
have the suit disposed of on merit.
In such view of the matter I find nothing to
interfere with the order impugned.
The revisional application, being C.O. 4379 of
2018 is accordingly dismissed.
However, the learned Court below is directed to
pass formal order accepting the written statement in view of
payment of the cost, within a period of one week from the
date of communication of this order and he will frame issues
within a period of three weeks thereafter. Upon framing
such issues he will make every endeavour to dispose of the
suit along with interlocutory application preferably within a
period of ten months thereafter.
Urgent photostat certified copy of this order, if
applied for, be supplied to the petitioner, on priority basis on
compliance of all usual formalities.
( Ajoy Kumar Mukherjee, J.)
