BALARAM DIXIT Vs. TADIT KUMAR ROUT

JUDGEMENT

(1.) IN this writ petition, the petitioners, who are defendants in Civil Suit No. 650 of 2011, assail the order passed by the learned Civil Judge (Senior Division), Ist Court, Cuttack rejecting their application under Order VIII, Rule 9 of the Code of Civil Procedure, 1908, hereinafter referred as the 'Code' for brevity, to accept the written statement ­cum-counter claim filed by the defendants.

(2.) THE defendants on 13.09.2012 filed their written statement- cum-counter claim along with a petition to accept the same. The defendants contended that the statutory period prescribed under Order VIII, Rule 1 of the Code had expired, but the defendants were not yet set ex parte. However, the defendants were precluded from filing their written statement and the case was posted for hearing. They further contended that due to bona fide reasons they could not file their written statement in time. It is the case of the petitioner that both the parties belong to same locality and there was possibility of mutual settlement at the intervention of Sahi Panchayat, for which defendants were advised not to file their written statement. But such possibility of mutual settlement no more subsists due to high handed attitude of plaintiff. They have also stated that hearing of suit not yet commenced, so no prejudice would be caused to the plaintiff if the time period for filing of written statement is extended and the written statement is accepted. On the other hand, there will be failure of justice, if the matter is not properly contested by both the parties and the defendants are not allowed to file their written statement. It is further contended that unless the written statement is accepted, they will suffer irreparable loss and injury which cannot be compensated in any manner. The defendants also stated that there has been no deliberate laches or negligence on their part. On the above averments the defendants prayed to accept their written statement cum counter claim and allow them to contest the suit.

(3.) AFTER hearing the parties and considering the materials on record, learned Civil Judge (Senior Division), Ist Court, Cuttack rejected the petition, inter alia, holding that the inordinate delay of eleven months after appearance of defendants for filing of their written statement has not been explained satisfactorily. It is further noted by the learned Civil Judge (Senior Division) that the ground stated in the time petitions filed on various dates and the ground stated in the petition under Order VIII, Rule 9 of the Code are contradictory. Such order of rejection has been assailed in this writ petition.