DHARMA SHAMSHER BASNET Vs. V T S CHETTRI

JUDGEMENT

(1.) THIS writ petition filed by the two defendants in Title Suit No. 2 of 2006 pending in the Court of learned Civil Judge, East and North Sikkim at Gangtok is directed against the interlocutory order dated 1-5-2008 passed by the learned Court of the Civil Judge, East and North Sikkim at Gangtok rejecting the application filed by the petitioners for extension of time to file written statement in the suit.

(2.) THE facts of the case relevant for the present purpose are that the plaintiffs who are respondents herein filed a Civil Suit on 10-7-2006 against the present petitioners seeking a decree for declaration, mandatory injunction and other reliefs. Along with the plaint, the plaintiffs also filed an injunction application under Order XXXIX R.1 and R.2 read with S.151 of the Code of Civil Procedure, 1908 (in short "CPC"). Since this application was followed by many miscellaneous applications including miscellaneous appeals to the lower appellate Court the defendants, i.e., the petitioners herein were so hard pressed that they could not file the written statement in the main suit in time. It was only 1-8 - 2007 that the petitioners were able to file the written statement along with an application for extension of time for filing written statement. The learned trial Court after hearing the parties and on an interpretation of Order VIII R.1, CPC came to the conclusion that the petitioners had not been able to show any cogent reason to justify extension of time and accordingly, rejected the petition. It is against this order that the petitioners have come up before this Court in the present petition. Since neither an appeal nor a revision under S.115, CPC lies against an order passed under Order VIII R.1, CPC the petitioners have resorted to constitutional provisions and have filed the present petition under Art.226 and Art.227 of the Constitution of India.

(3.) AT this stage, it may be relevant to mention that the grounds as narrated above were the only grounds taken in the present petition when it was initially filed. However, in course of the proceeding before this Court, the learned counsel for the petitioners moved an application for amendment mentioning that while preparing for motion for admission of the writ petition and also on examination of the relevant documents certain facts which were germane to the issue but had been inadvertently left out at the time of preparing the writ petition came to the notice of the petitioners. The facts so stated to have been left out are that the learned trial Court had never passed any order directing the issuance of summons upon the petitioners as required under the provisions of Orders V and VIII of CPC so that the limitation period of 90 days could be said to have commenced. As a consequence, the petitioners were labouring under the mistaken apprehension that the last date of filing the written statement was 13-10-2006, that is to say 90 days from date of service of notice to show cause to the defendants in the miscellaneous matter. Such misapprehension led them to believe that they were not able to prepare and file the written statement within the time prescribed by Order VIII R.1, CPC and there has been a delay of 291 days in filing the written statement. It was thus contended that since the learned trial Court had not yet passed any order directing issue of summons calling upon the defendants to file written statement of their defence no date has been set on and from which 90 days period could have been computed and as such, the written statement already filed by the petitioners could not have been treated as time barred. The amendment as sought for having been allowed after hearing the parties, the above grounds were also incorporated in the main petition and accordingly, recast writ petition was filed. The respondents chose not to file any counter - affidavit.