SRIMATI GAUD Vs. UDAYA CHANDRA PATEL

JUDGEMENT

(1.) THIS revision petition by the plaintiffs in Title Suit No. 68/17 of 1978 -80 is directed against the order dated 22. 9.1982 of the Subordinate Judge, Deogarb, accepting the written statement of opposite party No. 3, Lambodar Naik [defendant No. 3(a)] who had been set ex parte earlier. A perusal of the order shows that on that date the Court accepted some documents filed by the defendants Nos. 1 and 2 on condoning the delay, accepted the, written statement filed by defendant No. 3 on consideration of his application, proceeded to examine the witnesses on behalf of defendants and posted the suit to 30. 9. 1982 for argument. In this revision petition only that portion of the order accepting the written statement of opposite party No. 3 is challenged.

(2.) PERUSAL of the order -sheet of the trial Court reveals that opposite party No. 3 was set ex parte on 16. 11.1978. Thereafter the suit was dismissed for default of the plaintiffs, several times and was restored to file on allowing their applications . under Order 9, Rule 9, Civil Procedure Code in Misc. Cases Nos. 35/80, 35/81 and 7/82. Opposite party No. 3 in spite of opportunities Sranted to him failed to file his written statement. Recording of evidence in the suit commenced on 15. 9. 1982. On 16. 9. 1982 the evidence on the side of the plaintiffs was closed and the suit was posted to 18.9. 1982 for examination of the witnesses of defendants. On 20th of September, 1982 examination of witnesses on behalf of the defendants commenced and D. W. 1 was examined. On 21. 9. 1982 several witnesses were examined on If behalf of the defendants of whom Lambodar Naik, defendant No.3 was examined, as D.W.4. Thus, it is clear that opposite party No. 3 participated in the suit and was examined as a witness even in the absence of his written statement.

(3.) THE questions that arise for consideration are Whether the trial Court exercised jurisdiction illegally or with material irregularity in accepting the written statement of opposite party No. 3 (defendant No. 3) and whether the impugned order is available to be interfered with by this Court in exercise of its revisional jurisdiction ?' Section 148, Civil Procedure Code, provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Order 8, Rule 9, Civil Procedure Code provides inter alia that the Court may at any time require a written statement or additional statement from any of the parties and fix a time for presenting the same. Rule 10 states that where any party from whom a written statement is required under Rule .1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit. These provisions as well as Section 151, Civil Procedure Code, vest wide discretion in the trial Court to accept the written statement even after the date fixed. for the purpose. Once this position is accepted it cannot be said that the Court below in accepting the written statement of opposite party No. 3 exercised the jurisdiction illegally or with material irregularity. It is pertinent to note here that no period of limitation had been prescribed under these provisions for filing of a written statement by the defendants. It could not be said, therefore, that the delay on the part of the defendants in filing the written statement created any right in the plaintiffs to object to the late filing of the written statement on the ground of limitation. The rule as to the exercise of such discretion has been laid down by the Supreme Court in the case of Sangram Singh v. Election Tribunal (A. I. R. 1955 S. C. 425 ) in the following terms. :