[Cites 4, Cited by 0]

Orissa High Court

Sudhakar Sahoo And Others vs Ashok Kumar Dey And Others .... Opposite ... on 28 November, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 01-Dec-2025 13:08:28




                                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      C.M.P. No.162 of 2025
                            (In the matter of an application under Article 227 of the Constitution of
                            India)

                             Sudhakar Sahoo and others                  ....                 Petitioners
                                                                     -versus-
                             Ashok Kumar Dey and others                ....             Opposite Parties

                            Advocate(s) appeared in this case:-

                                          For Petitioners         : Mr. P.K. Panda, Advocate

                                          For Opposite Parties    : Mr. S. Mahapatra, Advocate
                                                                    For O.P. No.1

                                                                    Mr. S. Mishra, Advocate
                                                                    For O.P. Nos.2, 4 to 7

                                            CORAM: JUSTICE B.P. ROUTRAY
                                                              JUDGMENT

th 28 November 2025

B.P. Routray, J.

1. Mr. S. Mishra, learned counsel appears for Opposite Parties 2, 4

to 7. The power filed by him is kept on record.

2. Heard Mr. P.K. Panda, learned Advocate for the Petitioners, Mr.

S. Mahapatra, learned Advocate for Opposite Party No.1 and Mr. S.

Mishra, learned counsel for Opposite Parties 2, 4 to 7.

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:08:28

3. Present C.M.P. is directed against the order dated 11.12.2024 of

learned Additional Senior Civil Judge, Puri passed in C.S. No.733 of

2015, wherein the prayer of the Defendants 2(a), 2(c) & 2(d) to accept

their written statement by setting aside the ex-parte order has been

rejected.

4. Present Petitioners are Defendants 2(a), 2(c) & 2(d) in the suit

which was filed by the present Opposite Party No.1 praying for

declaration of right, title and interest, confirmation of possession and

permanent injunction along with other consequential reliefs. Present

Petitioners were set ex-parte on 29.03.2017 and then the suit proceeded

against other Defendants, where the Plaintiff adduced his evidence and

other Defendants are at the stage of continuing their evidence. At this

stage, present Petitioners being Defendants 2(a), 2(c) & 2(d) filed a

petition on 21.08.2024 praying to set aside the ex-parte order passed

against them along with a petition to accept the written statement on

their behalf. Said prayer of the Defendants 2(a), 2(c) & 2(d) was not

objected by the Plaintiff, but it was objected by other Defendants.

Present Opposite Parties 2, 4 to 7, who are the Defendants 1, 2(b), 2(c),

2(f) and 2(g) objected such prayer of present petioner mainly on the

ground of delay and that the Plaintiff has closed his evidence. It needs

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:08:28

to be mentioned here that, all the Defendants are the sons and

daughters of Defendant No.2 and they have inter se dispute among

them.

5. It is well settled that the Defendant should not generally be

deprived of filing his written statement which is a substantial right on

his part. Hon'ble Apex Court in Sumtibai v. Paras Finance Co. Regd.

Partnership Firm Beawer (Raj.), (2007) 10 SCC 82, have observed

that, "Every party in a case has a right to file a written statement. This

is in accordance with natural justice. The Civil Procedure Code is

really the rules of natural justice which are set out in great and

elaborate detail. Its purpose is to enable both parties to get a hearing.

The appellants in the present case have already been made parties in

the suit, but it would be strange if they are not allowed to take a

defence."

6. Further in Zolba v. Keshao, (2008) 11 SCC 769, it has been held

as follows;

"13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period mentioned in the

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:08:28

proviso to Order 8 Rule 1 CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature.

14. In Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344 : AIR 2005 SC 3353] it has been clearly held that the provisions including the proviso to Order 8 Rule 1 CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted even after the expiry of 90 days from the date of service of summons in exceptionally hard cases. It has also been held in that decision that the use of the word "shall" in Order 8 Rule 1 CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of the word "shall"

is ordinarily indicative of mandatory nature of the provision but having regard to the decision in that case, the same can be construed as directory. In AIR para 21 of the said decision, this Court observed as follows : (SCC p. 364, para 20) "20. The use of the word 'shall' in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:08:28

the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."

15. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice."

7. In the case at hand, it is the contention of the present Petitioners

that the fault on their part is indeliberate since the conducting counsel

failed to inform them properly about progress of the suit. It is also

submitted on behalf of the Petitioners that the order setting them ex-

parte was not intimated to them and they were under bona fide

impression that they are contesting in the suit. But at the stage of

evidence, they came to know that they were earlier set ex-parte vide

order dated 29.03.2017 and so they immediately filed the petition to set

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:08:28

aside the order with a prayer to accept the written statement on their

part.