RAMESH CHANDRA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) A very short but important question of law has arisen in this Civil Revision, namely, whether the Trial Court has the power to entertain the written statement filed by the defendant, after the Trial Court completed the ex parte hearing of the suit and adjourned the matter for delivery of judgement. The facts which are necessary for deciding this question are stated as follows : -

(2.) The petitioner as plaintiff instituted a suit being Title Suit No. 1958 of 1980 before the learned Judge IXth Bench in the City Civil Court, Calcutta. The said suit was against the Corporation of Calcutta and others, inter alia, for a declaration that the defendant is entitled to the renewal of building plan from Calcutta Corporation and for permanent injunction restraining the defendants, their agents and servants from interfering with the right of the petitioner to undertake the construction in accordance with renewed sanctioned plan in respect of the premises in suit and for a mandatory injunction to renew the said plan and for other reliefs. Even though the opposite parties were given several opportunities to file the written statement, even after the suit was fixed for ex parte hearing for the first time on December 11, 1980, the defendants did not file the written statement. The time was allowed from time to time till 29th January, 1982 for filing the written statement as a last chance. On 29th January, 1982 the opposite parties filed another application for time to file the written statement. The learned Judge rejected the said application and fixed 11th March, 1982 for ex parte hearing. Then on 28th April, 1982 the plaintiff's witness 1 was examined in part. On 29th April, 1982 the petitioner filed an application for recalling witness 1 for further examination and the learned Trial Judge fixed 11th June, 1982 for further examination of the plaintiff witness 1. On 11th June, 1982 the defendants filed a petition for time to file a written statement. The learned Trial Judge fixed 12th July, 1982 for hearing that petition after service of the copy of the said application to the petitioner. On July 12, 1982 the learned Trial Judge allowed the defendant to file written statement till 16-7-82. When on 16-7-82 the defendants did not file the written statement and again filed the application for time. His application was rejected and the petitioner's witness 1 was examined further. Thereafter ex parte hearing of the suit was closed on that date and the judgement was reserved on 26th July, 1982 and the learned Trial Judge again fixed July 30, 1982 for delivery of judgement. On July 29, 1982 the opposite parties filed a written statement and the learned Trial Judge fixed on July 30, 1982 for orders. On that day the defendant filed a petition praying for condonation of delay to file written statement and the trial Judge fixed August 29, 1982 for orders in presence of the lawyers of both sides regarding the acceptance of the written statement : The matter was again adjourned till December 10, 1982 and on that date the aforesaid application for acceptance of the written statement was taken up for hearing and the Trial Judge directed that the written statement filed by the defendant will be accepted after service of the copy of the written statement and for that purpose the learned Trial Judge fixed 11-1-83 to serve the copy of the written statement. The petitioner filed an application on December 10, 1982 praying for consideration of the documents : filed by him. The learned Trial Judge did not pass any order on the said application. Thereafter on 11-1-1983 the petitioner filed an application for stay of operation of the order No. 27 dated 10-12-82 but the said application was not also disposed of. The petitioner have moved this Court by filing this application under S.115, Civil P.C., on 28th January, 1983 and obtained this rule. Mr. D.K. Sengupta, the learned Advocate for the petitioner has submitted only one point. It is submitted by him that when the learned Judge. City Civil Court, Calcutta. fixed the date for judgement after closing the ex parte hearing of the suit on 16-7-1982 and reserved the delivery of judgement till 26-7-1982 and then till 30-7-83, he did not have any jurisdiction to entertain the written statement and in view of O.XX, Rule 1, Civil P.C., his only duty was to deliver the judgement. Therefore, the order dated 10-12-1982 that the written statement filed by the opposite party on 29-7-1982 will be accepted after service of the copy of the written statement on the petitioner plaintiff is clearly illegal and invalid and is liable to be set aside under S.115, Civil P.C. In support Mr. Sengupta has referred to me Supreme Court decision reported in AIR 1964 SC 993 (Arjun Singh v. Mohinder Kumar). Arun Prokash Sarkar appearing for the opposite parties has submitted that the decision of the Supreme Court has interpreted the true implications of the provisions of Rules 6 and 7 of O.9 C.P.C. that the Court had discretion to accept the written statement filed by the defendant even if the defendant failed to file the written statement within the time specified by the Court, that R.10 of O.8, Civil P.C. indicates that when the defendant does not file the written statement within the time specified by the Court, the Court has the power either to pronounce the judgement or to make such order in relation to the suit as it thinks fit and when in this particular case though the trial Court after closing the ex parte evidence of the plaintiff-petitioner fixed the date of delivery of judgement, he exercised his. discretion to accept the written statement filed by the opposite parties by order dated 10-12-1982, that the impugned order cannot, in these circumstances, be treated as illegal and that when the trial court exercised its discretion to accept the written statement so that there shall be a contested hearing of the suit it is not fit and proper for the High Court to interfere with that discretion by invoking S.115, Civil P.C.

(3.) Mr. Sengupta has drawn my attention to a portion of a judgement of the Supreme Court reported in AIR 1964 SC 993, at page 1003, which reads as follows :