CHINTAMONI @ SHITALI SONAMONI KISKU Vs. LAKHI RAM KISKU

JUDGEMENT

(1.) IN this writ application the petitioner has prayed for quashing the order dated 5.11.2003 and 13.12.2004 passed in Title Suit No. 113/2003 by the Munsif - II, Dhanbad, whereby the petitioner, who is the defendant in the Court below, has been debarred from filing the written statement on the ground that the same was filed after lapse of the prescribed period provided under Order VIII, Rule 1, CPC.

(2.) THE petitioners case is that on receiving summons of the suit served on him, he appeared through an advocate on 31.7.2003 and prayed for time to file written statement. The petitioner could not be ready with his written statement and as such he took time earlier and also prayed for time by his application dated 5.11.2003. The said application for time was rejected and by order dated 5.11.2003 the learned Munsif debarred the defendant from filing the written statement in view of the provision under Order VIII, Rule 1, CPC. According to the petitioner, between the date of his appearance on 31.7.2003 and the date on which the order debarring him was passed Annual (Durga Puja) vacation intervened and the Civil Courts remained closed from 1.10.2003 to 1.11.2003 and after reopening of the Courts he filed his written statement on 5.11.2003. According to the petitioner if the said period of vacation is excluded, he filed his written statement within the period prescribed under Order VIII Rule 1 C.P.C. and as such the order debarring the petitioner from filing the written statement is improper and contrary to law. The petitioner in that view filed an application dated 24.11.2003 to recall the order dated 5.11.2003 with a further prayer to accept the written statement already filed, but the same has been also rejected by the impugned order dated 13.12.2004.

(3.) MR . S.K. Laik, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the provisions of Order VIII, Rule 1 C.P.C. being mandatory and the defendant - petitioner having been failed in filing the written statement within the period prescribed by the Statute, the Court below has rightly passed the impugned orders and no interference. In the said orders of the Court below is warranted Learned counsel for the respondent also relied on the decision Karpuri Devi (supra) and submitted that this Court did not interfere with the order debarring the defendant from filing written statement in the said case. 2004 (4) JLJR 428, this Court has held that even where the written statement has not been filed within 90 days from receipt of summons by the defendant in an appropriate case, on his showing good cause, the Court can extend the time beyond the period of 90 days, up to further 30 day. In Karpuri Devi, (supra), also this Court has taken the same view but in the facts and circumstances of the said case, this Court did not interfere with the order of the Court, below by which the defendant was debarred from filing written statement as the same was not filed even within 120 days from his appearance. In the instant case the petitioner had shown good cause for not filing the written statement within the prescribed period. The Court below failed to take into consideration that the Court, remained closed on account of annual vacation from 1.10.2003 to 1.1.2003. The petitioner has reasonable ground to say that the delay after 30.9.2003 was not wilful but due to the annual vacation in the Civil Court, he could not filed the written statement within the prescribed time. The petitioner has also explained earlier delay before the vacation stating about his illness. The said explanation is reasonable and can be said to be good cause, preventing the petitioner from filling the written statement within the period of 90 days. However, the petitioner filed his written statement on 95th day i.e. within a period of 120 days from the date of appearance. This Court in the case of Lalit Chandra Raisurana, (supra), has already held that the Court has power to grant extension of time under Section 148 C.P.C. for further 30 days. No, proper reason has been assigned by the Court below for refusing the said judicial discretion. Any order of a Court of law, not supported by any just reason is unsustainable and can not be upheld. The orders of the Court below dated 5.11.2003 and 13.12.2004 are thus quashed. This application is allowed.