MD. IDRISH @ IDRISH MIAN, SON OF LATE ABDUL RAHMAN, RESIDENT OF VILLAGE AURA, P.O. Vs. HORIL ANSARI, SON OF LATE KARMALI ANSARI

JUDGEMENT

(1.) The controversy within the parties before this Court lies within a very narrow compass. The defendant no.1, who is petitioner before this Court, has been debarred from filing written statement by the court below by order dated 06.08.2011 and subsequently a petition filed by the petitioner to recall the order by which he was debarred, has also been dismissed by order dated 01.12.2012 passed by Sub Judge - III, Giridih in Title Suit No.77 of 2010.

(2.) After filing of the suit, the defendant appeared in the suit, upon notice by the court, on 20.12.2010 but he could not file his written statement within 90 days of his appearance since his wife was suffering from Malaria and he was busy in treatment of his wife till 02.05.2012 and only thereafter he came to know that the court below vide order dated 06.08.2011 has debarred him from filing written statement. The petitioner even then filed his written statement on 03.05.2012 but since he was debarred by the court below, his written statement was not accepted. Thereafter, he filed a petition on 16.05.2012 for recall of the said order dated 06.08.2011 and accept his written statement which he has already filed but as indicated above his petition filed for recall of the earlier order was also rejected. Hence, this writ.

(3.) Learned counsel, Mr. Murthy, appearing for the petitioner assailing the two orders of the court below seriously contended that the court below failed to consider the reasons advanced by the petitioners for delay in filing written statement and misconstrued the spirit of provisions of the Order 8, Rule 1 of the C.P.C. by interpreting its provision of filing of written statement within period of 90 days as mandatory in nature. Learned counsel further submitted that the petitioner would suffer serious prejudice if the written statement is not accepted and he is not allowed to contest the suit. In support of his contention, the learned counsel relied on a judgment reported in the case M/s R.N. Jadi & Brothers Vs. Subhashchandra; 2007(4) JLJR 98 (SC).