DEPUTY COMMISSIONER Vs. NAZIMUDDIN AHMED

JUDGEMENT

(1.) The facts very briefly are that the respondent-plaintiff filed Title Suit No. 7/88 in the Court of the Munsiff No. 1, Goalpara. The case of the plaintiff in the said Title suit is that by registered sale deed No. 3399 dated 2.7.94, defendant No. 5 sold the suit land and delivered possession of the same to the plaintiff. But thereafter by a aubsequent gift No. 456 dated 5.5.86, defendant Nos. 4 and 5 transferred the suit land in favour of State of Assam, defendant No.1. On the strength of the said gift deed dated 5.5.86, defendants Nos.2 and 3 have tresspassed into the suit land, forcibly occupied the same and constructed structure thereon. The plaintiff thereafter served notice under Section 80 CPC on the defendant Nos, 1, 2 and 3 and filed the suit for declaration of his right and title to the suit land and for a declaration that the gift deed No. 456 dated 5.5.86 is null and void and for recovery of possession of the suit land. After the summons were issued by the trial Court, the defendants appeared and sought for adjournments on various dates for filing written statement but the written statement was not filed and by order dated 4.8.88 the learned munsiff passed judgment in terms of the plaint and decreed the suit. Appeals were by the defendants against the said exparte decree dated 4.8.88 before the learned District Judge, Goalpara which were numbered as Title Appeal No. 25 and 26/88, but the said appeals were also dismissed by the learned District Judge, Goalpara. Aggrieved, the defendants have filed this Second Appeal before this Court.

(2.) The only substantial question of law urged by Mr. M.Singh, learned counsel appearing for the appellants, is that under the provision of Order VIII Rule 5 sub-rule 2 and Order VIII Rule 10 of the CPC, the learned Munsiff was not bound to pass a judgment in terms of the plaint on failure of the appellant defendants to file the written to file the written statement on 4.8.88. According to Mr. Singh, a discretion has been vested in the Court under the said provisions of the CPC and in the present case, since an application for adjournment had been filed by the appellants seeking an adjournment to file written statement on the ground that a report had been called for by the authorities in respect of the suit land which had not been receive, the learned Munsiff ought to have considered the said ground for adjournment before deciding to pass a judgment on the basis of the facts stated in the plaint inaccordance with the said provisions of the CPC. Mr. Singh relied on the judgment of the Division Bench of this Court in the case of State of Assam Vs. Sri Basanta and Others AIR 1987 Gauhati 85 in which the action of the Court in refusing an adjournment to file the written statement and in pronouncing judgment against the defendant was held as not sustainable in the facts and circumstances of that case.

(3.) Mr. A.S. Choudhury, learned counsel who appeared for the respondent, argued that since several dates had been taken earlier by the appellants for filing written statement, the learned Munsiff was justified in rejecting the petition for further adjournment for filing written statement and in pronouncing the judgment on the basis of facts stated in the plaint inaccordance with the provisions of sub-rule 2 of Rule 5 and Rule 10 of Order VIII of the CPC.