GAYADHAR MALIK Vs. HRUSHIKESHA MALIK

JUDGEMENT

(1.) Even though notice has been validly served on the opp. party-plaintiff, none appears for the said opposite party. The petitioners are the defendants 1 and 2 in C.S. No. 4 of 2009. After their appearance in the suit, they sought for adjournment to file their written statement. Lastly on 20.4.2009, the petitioners when again prayed for an adjournment seeking time to file their written statement, the learned trial Court recorded that the said date being the 90th day from the date of service of summons on them, no further time can be granted to the petitioners to file the written statement and rejected the said application. On 9.7.2010, the petitioners filed another application along with the written statement to recall the order dated 20.4.2009 and accept the written statement. The learned Trial Court hearing the said petition, by the impugned order, finding that the petitioners have not filed any document to substantiate their stand explaining the cause for not filing the written statement within the time prescribed under Order VIII, Rule 1 C.P.C. came to the conclusion that there is no reasonable ground to recall the order dated 20.4.2009 and accept the written statement filed by them. Being aggrieved, the petitioners have preferred the present writ petition.

(2.) It is submitted by the learned counsel for the petitioners that the defendant No. 1, who was looking after the case, being ill, sought for time on 20.4.2009 which prayer was rejected by the learned Trial Court and in the subsequent petition, the petitioner No. 1 on affidavit stated that he was ill on 20.4.2009 for which the petitioners could not file their written statement. He further submits that no objection on affidavit was filed to the said petition for acceptance of the written statement by recalling the order dated 20.4.2009. The learned Trial Court, therefore, has committed an error of law in disbelieving the plea of the petitioners that the petitioner No. 1 was ill on 20.4.2009 for which he could not file the written statement. According to him, the learned Trial Court should have accepted the written statement as it is well settled in law that for just cause, the Court has the power to extend the period for filing of written statement as prescribed under Order VIII, Rule 1 C.P.C.

(3.) Order VIII, Rule 1 C.P.C. underwent an amendment by Act 22 of 2002 and prescribed that the defendant shall present his written statement of his defence within 30 days from the date of service of-summons on him. In the proviso to Order VIII, Rule 1 C.P.C., it is prescribed that where defendant fails to file the written statement within thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but shall not be later than 90 days from the date of service of summons.