NEMAI CHANDRA SADHUKHAN Vs. BADAL DAS

JUDGEMENT

(1.) This is an application filed by the defendant no.1 in Title Suit No.1579 of 2016 pending before the learned Civil Judge (Junior Division), 1st Court at Howrah.

(2.) The defendant nos.1 and 2 both appeared in the suit and contested the same by filing separate vakalatnama on January 19, 2017. Both the defendants prayed for time to file written objection to the application for injunction as also their respective written statements. Time was allowed by the learned Court below by order dated February 14, 2017 and April 25, 2017 was fixed for filing the written statement. On April 25, 2017 the date for filing the written statement was extended to May 22, 2017. On May 22, 2017 due to resolution of the local bar, the case was adjourned and June 21, 2017 was fixed for filing written statement. On June 21, 2017 the defendant no.2 filed the written statement but the defendant no.1, that is, the petitioner did not file the written statement. The petitioner filed hazira and all subsequent dates the petitioner was present in Court and contested the proceeding. On April 18, 2017 the petitioner filed two applications, one for vacating of the ex parte proceeding and also a show cause accompanied with a written statement and the counter-claim.

(3.) It was submitted by the learned advocate for the petitioner before the Court below that although the petitioner had missed to file the written statement, he had all along participated in the proceeding and also examined P.W.1. In my opinion, the application for vacating the order fixing the suit for ex parte hearing was misconceived, as the learned Court below had not fixed the suit for ex parte hearing. While taking up the show cause filed by the petitioner explaining why the written statement was not filed, the learned Court below did not accept the explanation that the written statement was not filed due to inadvertence and unintentional mistake. The written statement and the counter-claim were not accepted by the learned Court below and the show cause was rejected. Subsequent date was fixed for cross-examination of P.W.1.