LAXMAN ORAON Vs. AKHIL BHARTIYA ADIVASI VIKASH PARISAD

JUDGEMENT

(1.) IN this writ application, the petitioner has prayed for quashing the order dated 29.4.2004 passed by the learned Sub -Judge I, Ranchi in Title Suit No. 24 of 2002 by which the Court below, once having accepted the written statement of the defendant, has held that the said written statement cannot be accepted in view of the belated filing of the same and that the time allowed to the defendant by the Court earlier for that purpose was by way of a routine. The grievance of the petitioner is that the Court, having once accepted the written statement and proceeded further, cannot subsequently reject the same on the ground that the same was not filed within the time prescribed by the newly amended provision of Order VIII Rule 1 of the Code of Civil Procedure. According to the learned counsel, the Court itself has allowed time to file written statement and after filing the same, the written statement was accepted, the suit was fixed for settlement of issues and after proceeding in the suit on several dates, the impugned order has been passed on a petition filed by the plaintiff which is against the provisions of law. Learned counsel submitted that although statutory time has been prescribed for filing written statement by the amended provision of Order VIII Rule 1 of the Code of Civil Procedure, yet the provision of Rule 9 of Order VIII gives power to the Court to accept the written statement filed by the party even belatedly. Learned counsel submitted that the said amendment in Order VIII Rule 1 has not taken away the said power provided in Order VIII Rule 9 of the Code of Civil Procedure. Mr. A.K. Srivastava, learned counsel appearing on behalf of the respondent, on the other hand submitted that the amended Code of Civil Procedure has prescribed a statutory period for filing a written statement and that the written statement having not been filed within the prescribed period of time, there is nothing wrong in exercise of the jurisdiction of the Court, if it has rejected the written statement and deprived the petitioner from filing the same.

(2.) AFTER hearing the learned counsel for the parties and perusing the relevant records, I find that in this case there is dispute of the date on which actually the summons was served on the defendant. It appears from the order -sheet that the Court was also not clear on this fact and the Court itself had adjourned the case for several orders for filing written statement. No objection was raised by the plaintiff against granting time for filing written statement. The written statement was ultimately filed on 26.6.2003, the date fixed by the Court, for that purpose. At that point of time also no objection was made by the plaintiff. The suit proceeded further and the same was posted for settlement of issues. Subsequently, after several dates, the plaintiff filed a petition that the written statement of the petitioner cannot be accepted as the same has been filed belatedly beyond the prescribed statutory period. The Court below, without considering the provisions of Rule 9 of Order VIII, which gives the Court, power to accept the written statement, has erroneously held that the Court has got no power to accept the written statement after the statutory period fixed under Order VIII Rule 1 of the Code of Civil Procedure. In that view, the Court below has not exercised its jurisdiction properly and has passed the impugned order erroneously. The Court below, having once accepted the written statement and proceeded further, cannot, at the subsequent stage, revert back and refuse to accept the written statement on the ground mentioned in the impugned order. The impugned order is, thus, quashed. This writ petition is allowed.