Jharkhand High Court
Chaitan Paul @ Chaitanya Paul vs Arun Paul on 7 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 1160 of 2023
Chaitan Paul @ Chaitanya Paul, aged about 45 years, S/o Late
Benimadhab Paul, R/o Vill. Upar Para Baragamaria, P.O. Gamaria, P.S.
Adityapur, Dist. Seraikella-Kharswan, Jharkhand ... Petitioner
-Versus-
1. Arun Paul, S/o Late Dulal Paul
2. Manju Paul, W/o Late Barun Paul
3. Sivan Paul, S/o Late Barun Paul, minor represented through his
mother/natural guardian viz. Manju Paul, W/o Late Barun Paul, 1 to 3
R/o Vill.- Baragamharia, Ward No.11, N.A.C., Adityapur, P.O. Gamharia,
P.S. Adityapur, Dist. Seraikella-Kharswan, Jharkhand
4. Tribhanga Paul, S/o Late Dulal Paul, R/o Vill. Baragamharia,
Namopara, P.O. Gamharia, P.S. Adityapur, Dist. Seraikella-Kharswan,
Jharkhand
5. Smt. Sarathi Paul, D/o Late Dulal Paul & W/o Niranjan Bera, R/o Vill.
Chakulia (Namopara), P.O. & P.S. Chakuliya, Dist. East Singhbhum,
Jharkhand
6. Srimati Bera, D/o Late Dulal Paul & W/o Ajit Bera, R/o Vill.
Baragamharia, behind the house of Dr. R.P. Gupta, P.O. Gamharia, P.S.
Adityapur, Dist. Seraikella-Kharswan, Jharkhand
7. Arati Kumbhkar, D/o Late Dulal Paul & W/o Gurupado Kumbhkar, R/o
Vill. Baragamharia, Station Road, P.O. Gamharia, P.S. Adityapur, Dist.
Seraikella-Kharswan, Jharkhand
8. Subhagya Bera, D/o Late Dulal Paul, R/o Vill. Baragamharia, Station
Road, P.O. Gamharia, P.S. Adityapur, Dist. Seraikella-Kharswan,
Jharkhand
9. Samar Das
10. Milu Das, 9 & 10 S/o Late Madan Das, R/o Vill. Upar Para
Baragamharia, P.O. Gamharia, P.S. Adityapur, Dist. Seraikella-
Kharswan, Jharkhand ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Abhishek Kumar Dubey, Advocate
For Opposite Party Nos.1 to 3 : Mr. Ashish Kumar, Advocate
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14/07.01.2025 Notices were issued upon opposite party nos. 1 to 10. Learned
counsel Mr. Ashish Kumar appears on behalf of opposite party nos. 1 to 3.
Notice upon opposite party no.4 has been received by his wife, notice upon
opposite party nos. 5, 6, 7, 8 and 9 are deemed to be validly served, as
pointed out by the office and notice upon opposite party no. 10 was hanged
on the door and, as such, notice upon opposite party nos. 4 to 10 are
deemed to be validly served. The matter was adjourned on 12.07.2024,
27.09.2024, 12.11.2024 and 17.12.2024 and in spite of that, nobody has
appeared on behalf of them and in view of that, this petition is being heard
on merit in absence of opposite party nos. 4 to 10.
2. Heard Mr. Abhishek Kumar Dubey, learned counsel for the petitioner
and Mr. Ashish Kumar, learned counsel for opposite party nos. 1 to 3.
3. This petition has been filed under Article 227 of the Constitution of
India praying therein to quash the order dated 12.04.2023 passed by the
learned Civil Judge, Junior Division, Seraikella in T.P.S./O.S. No.34 of 2016,
whereby, the petitioner has been debarred from filing the written statement.
4. Learned counsel for the petitioner submits that in the suit, the
petitioner has not received any summon or notice. He submits that by way
of paper publication, it has come into the knowledge of the petitioner about
pendency of the suit and in view of that, the petitioner appeared before the
Court after obtaining the plaint from the plaintiffs and on the second date
the written statement was filed, however, the learned Court has been
pleased to reject the same on the ground of long delay under Order VIII
Rule 1 CPC. He further submits that in absence of plaint, no written
statement can be filed and written statement was filed after obtaining the
same when it has come into knowledge of the petitioner about the
pendency of the suit from paper publication. He also submits that the said
provision is not mandatory and it is directory and it has been held in several
judgments by the Hon'ble Supreme Court as well as High Courts. He refers
paragraph 26 of the judgment by the Hon'ble Supreme Court in the case of
Kailash v. Nanhku & others, reported in (2005) 4 SCC 480, which
reads as under:
"26. The text of Order VIII, Rule 1, as it stands now, reads
as under : -
"1. Written statement.__ The defendant shall, within
thirty days from the date of service of summons on him,
present a written statement of his defence:
Provided that where the defendant fails to file the
written statement within the said period of thirty days, he
shall be allowed to file the same on such other day, as may
be specified by the Court, for reasons to be recorded in
writing, but which shall not be later than ninety days from
the date of service of summons."
Relying on the above judgment, he submits that the case of the
petitioner is fully covered and it will be prejudiced to the petitioner if the
petitioner will not be allowed to file written statement in the suit. On these
grounds, he submits that the impugned order may kindly be quashed.
5. Learned counsel for opposite party nos. 1 to 3 vehemently opposed
the prayer and submits that there is long delay and in view of that, the
learned Court has rightly passed the order. He further submits that
without taking leave of the Court, two written statements have been filed by
the petitioner and the learned Court has rejected the same. He further
submits that limitation petition for condoning the delay was not filed
and in view of that, the order is correct. On these grounds, he submits
that this petition may kindly be dismissed. He relied upon the
judgment passed in the case of Atcom Technologies Limited v. Y.A.
Chunawala and Company and others , reported in (2018) 6 SCC 639
and submits that the case of opposite party nos. 1 to 3 is fully covered
in view of that judgment and, as such, this petition may kindly be
dismissed.
5. It is an admitted position that by the impugned order, the learned
Court has been pleased to dismiss the written statement filed by the
petitioner relying the provision made under Order VIII Rule 1 CPC. It has
been contended that in the suit, notice was not issued to the petitioner and
it has come into the knowledge of the petitioner only after paper publication
of pendency of the suit. In this background, one is required to look into the
provision made under Order V Rule 2 CPC, which clearly suggests that any
summon shall be accompanied by a copy of the plaint. In the case in hand,
in the suit notice was not issued and in view of that, the plaint was not with
the petitioner. On paper publication, the pendency of the suit has come into
knowledge of the petitioner and, thereafter, he has appeared before the
Court and obtained the plaint and on the next date of listing, the written
statement was filed. This aspect about Order V Rule 2 CPC was considered
by the Hon'ble Supreme Court in the case of Bharat Kalra v. Raj Kishan
Chabra, reported in 2022 LiveLaw (SC) 465 as well as in the case of
National Insurance Company Ltd. v. M/s National Building
Construction India Limited and others, reported in 2023 LiveLaw
(SC) 800 and considering Order V Rule 2 CPC, those petitions were
allowed.
6. Further, it is well settled that the provision of restricting in filing the
written statement is not mandatory it is directory, as has been held by the
Hon'ble Supreme Court in the case of Kailash v. Nanhku (supra) as
relied by the learned counsel for the petitioner.
7. So far as the contention of the learned counsel for opposite party nos.
1 to 3 with regard to delay and not filing condonation petition is concerned,
it is well known that intention of filing the petition is required to be looked
into and if in such background, the said written statement was filed,
the intention of condoning the delay was already there. Merely because
the correct provision of law is not mentioned, that cannot be a ground
to reject the petition in the interest of justice. So far as the judgment
relied by the learned counsel for opposite party nos. 1 to 3 in the case of
Atcom Technologies Limited (supra) is concerned, in that case,
the High Court condoned the delay of more than 5 years in filing the
written statement with cost and the Hon'ble Supreme Court reversed
the order of the High Court on the ground that proper and satisfactory
explanation for delay was not there. It is well settled that extension
of period of filing written statement is directory in nature, not mandatory in
nature and the Court has a power to condone the delay if proper
and satisfactory explanation of delay is there. In the case in hand,
satisfactory reasons are there for not filing the written statement within the
time and, as such, the judgment relied by the learned counsel for opposite
party nos. 1 to 3 is not much helping them.
8. In view of the above facts, reasons and analysis and considering the
law held with regard to filing of the written statement, the order dated
12.04.2023 passed by the learned Civil Judge, Junior Division, Seraikella in
T.P.S./O.S. No.34 of 2016 does not sustain in the eyes of law. Accordingly,
the order dated 12.04.2023 passed by the learned Civil Judge, Junior
Division, Seraikella in T.P.S./O.S. No.34 of 2016 is, hereby, quashed.
9. The written statement filed by the petitioner is already rejected by the
learned Court and in view of that, the petitioner is directed to file written
statement within 30 days from today and the said written statement will be
accepted by the learned Court on the payment of cost of Rs.5,000/-, which
will be paid by the petitioner in favour of the plaintiffs.
10. Accordingly, this petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
