Jharkhand High Court
Smt. Fulkumari Devi vs Dipankar Coondo on 8 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[2025:JHHC:10872]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 456 of 2024
Smt. Fulkumari Devi, aged 40 years, wife of
Mahendra Mandal, resident of Kashitand, P.O. and
P.S. Karmatanr, District-Jamtara.
..... ... Petitioner
Versus
1. Dipankar Coondo, son of Late Chandi Charan
Coondo @ Satyabrata Coondo, resident of 12/A/3
Priyanath Chatterjee Lane, Baranagar, P.O. and P.S.
Baranagar, District-North 24 Parganas, Kolkata-
700033 (West Bengal).
2. Shubhankar Coondo, son of Late Chandi Charan
Coondo @ Satyabrata Coondo, presently residing at
37, Balaram Dey Street, Post Beadon Street, P.S.
Girish Park, District-Kolkata-700006.
3. Tanushri Ganguli, wife of Gautam Ganguli,
daughter of Late Chandi Charan Coondo @
Satyabrata Coondo, resident of P21, Regent Estate,
P.O.-Regent Estate, P.S. Bijaygarh, District-Kolkata
(West Bengal).
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Kaushik Sarkhel, Advocate.
: Mr. Abhishek Singh, Advocate.
For the Opposite Parties : Mr. Chandrajit Mukherjee, Advocate.
: Mr. Preetam Mandal, Advocate.
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06/ 08.04.2025 Heard learned counsel appearing for the petitioner and
learned counsel for the opposite parties.
2. This petition has been filed under Article 227 of the
Constitution of India, wherein prayer has been made for setting aside
the order dated 12.03.2024, passed in Original Suit No. 44 of 2019, by
the learned Civil Judge (Senior Division)-II, Jamtara, by which, the
petition, filed by the petitioner for recalling the order dated 26.05.2023,
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by which, the suit was fixed for ex-parte hearing and further prayer for
filing the written statement has been rejected.
3. Mr. Sarkhel, learned counsel appearing for the
petitioner/defendant submits that Original Suit No. 44 of 2019 has been
instituted by the respondent/plaintiff for a decree of declaring the right,
title and interest and confirmation of possession or alternative recovery
of possession and further declaring the sale deed No. 16 dated
01.02.2019 of Jamtara Sub Registration Office Book No. 1, volume-2,
Page 465 to 544 is void, in-operative in law and deemed to be
cancelled. He submits that the summon has not been received by the
petitioner / defendant and belatedly it has come into the knowledge that
the suit is pending, when the notice in the CMP, preferred by the
respondent/plaintiff has been received. He further submits that at the
belated stage, the petitioner herein has appeared before the learned
court and filed a petition for recall of the ex-parte order and to allow
him to file the written statement, which has been rejected by the learned
court. He submits that the intention was not to delay and it was bona
fide and the provision made under Order-VIII Rule-1 CPC is directory
not mandatory, as has been held by the Hon'ble Supreme Court in the
case of Kailash Versus Nanhku & Ors., reported in (2005) 4 SCC 480
and further in the case of Salem Bar Association, Tamil Nadu Versus
Union of India, reported in (2005) 6 SCC 344. He submits that for the
ends to justice, a time may kindly be allowed to file the written
statement and to contest the case.
4. Mr. Mukherjee, learned counsel appearing for the opposite
parties opposed the prayer and submits that it is not the case, where the
petitioner was not knowing about the pendency of the suit, as in the
CMP, filed before this court they have appeared and knowing well
about the pending suit, they have not appeared before the learned court.
He submits that since the knowledge was there, in view of that the
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learned court has rightly not allowed to recall the ex-parte order and
that has been held by the Hon'ble Supreme court in the case of Sunil
Poddar & Ors. Versus Union Bank of India, reported in (2008) 2 SCC
326. Relying on this judgment, he submits that this petition is fit to be
dismissed.
5. The ex-parte order has been passed on 26.05.2023 and the
written statement was filed on 05.07.2023, which has not been accepted
by the learned court and recall of the ex-parte order was filed on
15.05.2023.
6. Learned counsel appearing for the opposite parties has not
been able to show from the record that the summon has been received
by the petitioner, however, it has been pointed out by the learned
counsel appearing for the opposite parties that even the substituted
notice was made by way of paper publication. It is not before this court
as to whether the learned trial court after having the satisfaction of not
appearance has passed the said order.
7. In light of the two judgments relied by the learned counsel
appearing for the petitioner in the case of Kailash (Supra) and further in
the case of Salem Bar Association, Tamil Nadu (supra), it is well settled
that Order-VIII Rule-1 CPC is directory and not mandatory and further
the CPC is meant for providing justice and the rules are handmade,
which can be relaxed in the appropriate cases.
8. In view of the above, the impugned order dated 12.03.2024,
passed in Original Suit No. 44 of 2019, by the learned Civil Judge
(Senior Division)-II, Jamtara, is hereby, set aside.
9. In view of the aforesaid finding, the ex-parte order dated
26.05.2023 is also set aside and the learned court will allow the
petitioner to contest the case on merits and it is made clear that the
petitioner will not take unnecessary adjournment before the learned
court and the written statement, which has already been filed by the
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petitioner will be accepted at the cost of Rs. 5,000/- to be paid before
the learned court to the respondent/plaintiff. The respondent/plaintiff
will be provided the right of rebuttal so far as the written statement is
concerned.
10. This petition is allowed in the above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
