SUKHDEO RAI Vs. ASHOK KUMAR RAI

JUDGEMENT

(1.) Strange indeed is the manner in which the present litigation has meandered for the entire length of the last decade and a substantial part of the present. It is to halt this unnatural process, that exposes the fragile side of the Judicial system, that this Court has attempted to put the litigation back on its track after an elaborate hearing at the motion stage.

(2.) The facts in brief may be noticed at the outset. The Respondent No. 1, herein as the plaintiff, has instituted Title Suit No. 25/ 91, for a decree of declaration of his title in respect of the suit property and for recovery of possession. The suit was filed on 8-2-91 and summons was served on the defendant No. 1 in the suit who is the petitioner herein on 24-9-91 (hereinafter referred to as the defendant). The defendant appeared and sought time to file written statement, which was granted to him on several occasions. On 17-3-93, the learned trial Court fixed the suit for ex parte hearing as till the said date the defendant had not filed his written statement. However, on 7-2-94, the suit was dismissed for non-prosecution and continued to remain so until it was restored on 11 -6-01. Upon restoration of the suit, the learned trial Court thought it proper to vacate the order of ex parte hearing passed earlier and directed the defendant to file his written statement. The defendant continued to take time and as no written statement was filed, the learned trial Court proceeding under the amended provision of Order VIII, Rule 1 of the Code of Civil Procedure (amended by the CPC (Amendment) Act, 2002) once again fixed the suit for ex parte hearing, by order dated 2-1-03. Thereafter, it appears that the learned Counsel for the defendant sought leave of the Court to withdraw from the case and the learned trial Court permitted the learned Counsel to take necessary steps in this regard by issuing notice to the defendant. As no step was taken by the learned Counsel, as directed, the learned trial Court, by order dated 27-2-03, fixed the case for argument. Thereafter, on 4-6-03, it was pointed out to the learned trial Court that in view of the value of the suit, the same would be within the jurisdiction of the Court of the learned Civil Judge, Junior Division. The said fact being pointed out, the learned trial Court, thought it proper to place the case records before the learned District Judge, who by order dated 9-6-03, transferred the case to the learned Civil Judge, Junior Division No. II, Guwahati, for disposal. The aforesaid development i.e. transfer of the case to the Court of the learned Civil Judge, Junior Division No. II Guwahati, was brought to the notice of the learned Counsel appearing for both the sides on 10-7-2003. On 3-9-03, the defendant filed his written statement in the case along with an application to take the written statement on record. The said prayer having been rejected by the learned trial Court by order dated 21-11 -03, the instant application has been filed under Article 227 of the Constitution. 2A. I have heard Mr. S. P. Roy, learned Counsel for the petitioner and Mrs. M. Kumari, learned Counsel for the respondent No. 1.

(3.) Three broad aspects of the challenge made is noticeable in the arguments advanced by Mr. S. P. Roy, learned counsel for the petitioner. Mr. Roy, has argued that regardless of the past events which had occurred, as the written statement has been filed by the defendant, and the suit has been instituted prior to the amendment of the Code of Civil Procedure, the learned trial Court, for the ends of justice, ought to have accepted the written statement filed instead of deciding to proceed in the matter ex parte against the defendant. Mr. Roy, learned Counsel for the petitioner, has argued that the provisions of Sections 6, 9 and 15 of the Code of Civil Procedure (Amendment) Act, 2002, make it abundantly clear that the amended provisions of Orders V and VIII of the Code of Civil Procedure would not apply to a suit instituted earlier to the coming into force of the Code of Civil Procedure (Amendment) Acts of 1999 and 2002 and therefore, the learned trial Court had clearly gone wrong in refusing the plaintiffs prayer for acceptance of the written statement by relying on the amended provisions of Order VIII, Rule 1 of the Code of Civil Procedure. Learned Counsel has further argued that the transfer of the suit by the learned District Judge to the Learned Civil Judge, Jr. Division, No. 2 having been brought to the notice of the defendant on 10-7-2003, in any case, the period of 90 days, mentioned in Order VII, Rule 1 must be computed from the said date. As the written statement was filed by the defendant on 3-9-2003, the impugned order refusing to accept the same is contended to be contrary to the provisions of Order VII, Rule 1 itself. Lastly, it has been argued by Mr. Roy, learned Counsel for the petitioner, that even if the trial Court is assumed to be correct in rejecting the petitioner's prayer for acceptance of the written statement, the trial Court could not have fixed the suit for arguments without giving the defendant an opportunity to cross-examine the witness/witnesses examined by the plaintiff and further without giving the defendant an opportunity to lead his own evidence. Reliance in this regard has been placed on an Apex Court decision in the case of Ramesh Chand Ardawatiya v. Anil Panjwani, reported in (2003) 7 SCC 350; (AIR 2003 SC 2508).