RAM PRASAD BEHERA Vs. NANDI KISHORE PUJHARI

JUDGEMENT

(1.) The plaintiff being the petitioner has filed this application assailing the order dated 06.02.2004 passed by the learned Civil Judge (Senior Division), Sambalpur in Civil (Money) Suit No.107 of 2002 rejecting his application for non-acceptance of the written statement filed by the defendants-opposite parties 1 to 6.

(2.) The petitioner who is one of the senior most advocates in the District Advocates? Bar at Sambalpur Town filed Civil (Money) Suit bearing No.107 of 2002 against the opposite parties-defendants in 2 which it is stated that M.S. Plot No.1987 is the roiyati land of the petitioner, which he had acquired 65 years ago. He got parcha in the major settlement and has been paying rent to the Government, which has recognized him as tenant in respect of the said land. The opposite parties-defendants illegally constructed a road over his raiyati plot no.1987 about two and half years back though the public road was recorded as M.S. Plot No.1994 in the major settlement. On 26.12.2001, when the petitioner started construction of a boundary wall over his land, the opposite parties obstructed to do so and lodged information falsely before the police alleging that the petitioner was going to obstruct the public road, which according to them was on M.S. Plot No.1987. The intention of the opposite parties-defendants was to get the petitioner arrested on the basis of the aforesaid false allegation and accordingly, they instituted a criminal case against the petitioner which was still pending by the time the suit was filed. Pursuant to notice all the opposite parties except opposite party no.6 appeared in court on 06.03.2003 and sought for time to file written statement on the ground that "due to non availability of some material papers relating to the suit", they could not file the written statement and service return in respect of opposite party no.6 was awaited and the case was posted to 06.05.2003 for filing of written statement. The opposite parties-defendants filed written statement on 06.05.2003 on which date the petitioner filed an application under Order-8 Rule-1 CPC vide Annexure-2 with a prayer not to accept the written statement from the defendants because as 3 per the provision of Order-8 Rule-1 CPC as amended in 2002, the defendant must file his written statement within 30 days from the date of service of summons on him or if he is unable to file written statement within that period of 30 days, he has to apply for time giving sufficient reasons therein and the court may give time for reasons to be recorded in writing as per the proviso appended to Order-8, Rule-1 CPC.

(3.) The petitioner-plaintiff stated that 30 days have expired much before 06.05.2003 and the defendants did not file any application for time to file written statement in court within the said period, therefore, the proviso to Order-8 Rule-1 CPC is not at all attracted. Therefore, it is stated that the written statement so filed cannot be accepted and the plaintiff should be heard in the matter. But the trial court by virtue of the impugned order rejected such petition and accepted the written statement filed by defendant nos.1 to 5 for just and proper adjudication. Against the rejection, the petitioner has filed this application.