Orissa High Court

Akshaya Kumar Das And Another vs Sanjukta Palei @ Nayak And Others ... ... on 14 October, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Reason: Authentication
Location: OHC, Cuttack
Date: 17-Oct-2025 17:11:02



                          IN THE HIGH COURT OF ORISSA AT CUTTACK
                                             CMP No.763 of 2025

                  (In the matter of an application under Article 227 of the Constitution of
                  India)

                   Akshaya Kumar Das and Another              ....                  Petitioners

                                                            -versus-

                   Sanjukta Palei @ Nayak and Others ...                      Opposite Parties


                  Advocate(s) appeared in this case:-

                               For Petitioners      :   Mr. T.K. Mishra, Advocate.

                               For Opp. Parties     :   Mr. A. Baral, Advocate.


                                 CORAM: JUSTICE B.P. ROUTRAY
                                                   JUDGMENT

14th October, 2025

B.P. Routray, J.

1. Heard Mr. T.K. Mishra, learned counsel for the Petitioners and

Mr. A. Baral, learned counsel for the Opposite Parties.

2. Present CMP is directed against order dated 17th December,

2024 of learned Senior Civil Judge, Puri passed in C.S. No.350 of

2023 wherein the prayer of Defendants 8 and 9 to accept their

written statement has been refused.

3. In the suit filed by present Opposite Parties 1 and 2, Defendants

8 and 9 (present Petitioners) appeared upon receipt of notice but did

not file their written statement in time. Therefore vide order dated

28th March, 2024 of the trial court said Defendants were debarred of

their right from filing the written statement. Subsequently the suit

proceeded and the Plaintiffs adduced their evidence. After

examination of one witness from the side of Plaintiffs, Defendants 8

and 9 filed a petition on 23rd August, 2024 praying to accept their

written statement along with the WS.

4. The reasons stated by Defendants 8 and 9 for delay in filing the

written statement is due to non-collection of certain information.

5. The suit has been filed praying for reliefs of declaration of right,

title, interest over suit schedule „A‟ property with further declaration

against the consolidation RoR and for permanent injunction in

respect of suit schedule „B‟ property along with other consequential

reliefs.

6. Admittedly, Defendants 8 and 9 are the contesting parties

amongst other defendants. It is true that the petition filed by

Defendants 8 and 9 to accept their written statement on record is

with delay around 5 months from the date they were debarred from

filing the written statement by learned trial court. The petition filed

by said defendants under Annexure-2 does not disclose any

substantial reason for the delay occurred on their part.

7. It is true that a contesting party should not be deprived of his

substantial right of filing the pleadings and the law is well settled on

the same. 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."

8. 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 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 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."

9. Having considered the nature of prayer made in the plaint and

the reliefs sought against present Defendants 8 and 9 vis-à-vis their

right to defend and the delay caused on their part in filing their

written statement, it is felt appropriate in the interest of justice to

give an opportunity to them to file their written statement raising

their counter pleadings. However, the loss sustained on the part of

the Plaintiffs for such belated filing of written statement by

Defendants 8 and 9 has to be compensated adequately.

10. In the result the CMP is allowed and Defendants 8 and 9 are

permitted to file their written statement in the suit as already filed

along with the petition dated 23rd August, 2024, which shall be

accepted on record by the trial court, subject to payment of cost of