BISWANATH PAU Vs. UMA DEB

JUDGEMENT

(1.) Having heard Mr. D.K. Biswas, the learned counsel for the petitioners, and Mr. Shankar Deb, the learned senior counsel assisted by Mr. R. Das Gupta, the learned counsel for the respondents, the sole question which falls for consideration in this civil revision is, whether the filing of an application filed by the defendant under Order VII, Rule 11(d) of the Civil Procedure Code ("the Code" for short) for rejecting the plaint can postpone the filing of a written statement beyond the maximum period for the filing thereof permissible by the proviso to Rule 1 of Order VIII of the Code?

(2.) The controversy arose on the following facts and circumstances. On 18/5/2016, the respondents instituted the suit for recovery of possession of the suit land from the petitioners, who claimed that they or their predecessors-in-interest have been in continuous possession of the suit since 1968. Summonses were received by the petitioners for the first time on 16-8- 2016. No written statement was immediately filed by the petitioners. It would appear that from 16/8/2016 to 17/11/2016, no written statement was filed by them. However, on 17/11/2016, the petitioners filed an application under Order VII, Rule 11(d) of the Code for rejecting the plaint on the ground that the suit was time-barred. On 24/6/2017, when the suit was called for hearing, the counsel for the petitioners sought for time as the conducting counsel was outside the State for personal affairs. The trial court observed that four adjournments had already been granted on the prayers of either of the parties and that seeking time for hearing on such an application due to personal affairs was not permissible by law and accordingly rejected the application as it was not moved by the learned Advocate appearing for them. The trial court further observed that no written statement was filed by the petitioners till that day, while the mandatory period of ninety days was over in the meantime and it, accordingly, held that the opportunity to file the written statement was, therefore, closed. Aggrieved by this order, this civil revision has been preferred by the petitioners.

(3.) Attacking the impugned order, Mr. DK Biswas, the leaned counsel for the petitioners, submits that the trial court should have at first decided the permissibility of filing the application under Order VII, Rule 11(d) and only then should have taken up the issue of filing the written statement and having omitted to do so, it improperly exercised the jurisdiction vested in it by law; the impugned order is liable to be set aside for this reason alone. According to the learned counsel, when, on the basis of the plain averments of the respondents and without going into the defence to be set up by the respondents, the suit is plainly barred by Sec. 27 of the Limitation Act, 1963, it should have been dismissed by the trial court under Order VII, Rule 11(d) of the Code; there is failure on the part of the trial court to exercise its jurisdiction in not rejecting the plaint. To fortify his submissions, he relies on Sopan Sukhdeo Sable and others v. Asstt. Charity Commissioner and others, (2004) 3 SCC 137 and Saleem Bhai v. State of Maharashtra and others, (2003) 1 SCC 557. He, therefore, submits that the impugned order is liable to be set aside and the suit be remanded to the trial court for hearing the petitioners on their application for rejection of the plaint under Order VII, Rule 11(d).