Aloka Singha vs Sri Surya Kanta Singha

Sahidullah Munshi, J.—Affidavit of service, filed in Court today, be taken on record.

Despite service no one appears for the opposite parties.

This revisional application is directed against Order No. 21 dated 28th April, 2010 passed by the learned Civil Judge (Senior Division), Malda in Money Suit No. 18 of 2004.

By the order impugned the learned Court below has refused to accept defendant/petitioner''s written statement. It is submitted by the learned Advocate for the petitioner that 27th August, 2004 was fixed for appearance and the defendant might file his written statement which was allowed by the learned Court below till 13th January, 2005. Fresh prayers were made from time to time for filing written statement and the learned Court below allowed the same. On 18th April, 2006 defendant''s prayer for filing written statement was rejected and 17th October, 2006 was fixed for ex parte hearing and time was allowed till 20th April, 2007. Defendant''s prayer for further time was rejected. In the meanwhile, however, the defendant filed written statement on 10th November, 2006. On 20th April, 2007 both the parties were present and the learned Court below fixed the matter on 26th July, 2007 for hearing regarding acceptance of the written statement. The defendant filed a petition supported by an affidavit together with medical certificate along with his show cause and explained the delay for late filing of the written statement. A copy of the medical certificate has been annexed to the reply to show cause which shows that the defendant, who is aged about 73 years, was suffering from hypertension and pain in the limbs and spine from 15th July, 2007. The said certificate was issued by the registered medical practitioner on 25th February, 2008 but corroborates that the petitioner was really suffering for long time before filing the written statement. The learned Court below has rejected the reply to show cause and consequently did not accept the written statement filed by the petitioner on the ground that the same was filed after a long time but not within the permissible limit under Order 8, Rule 1 of the Code of Civil Procedure. However, Order 8, Rule 1 proviso says that where the defendant fails to file the written statement within the stipulated period of thirty days, he shall be allowed to file the same on such other date as may be specified by the Court for reasons to be recorded in writing but which shall not be later than ninety days from the date of summons. Having regard to such provision of law, the learned Court below has refused to accept the written statement beyond the prescribed period.

Mr. Banerjee, learned Advocate appearing for the petitioner submits that the said provision is directory and not mandatory. Therefore, Court has a discretion to accept such written statement provided the delay has properly been explained and there is a bona fide on the part of the defendant for such delay. As held by the Hon''ble Apex Court in the case of Kailash v. Nanhku and others reported in (2005) 4 SCC 480. It has been held that the said provision of Order 8, Rule 1 and its proviso thereto, as amended, have been held to be directory and may not be understood as nullifying the entire force and impact. However, the Hon''ble Apex Court has held that it should be allowed only as an exception but not in every case. The Hon''ble Apex Court has also held that the Court may impose costs. In the present case, the defendant filed an application and explained the delay and in support thereof she relied upon a medical certificate to show that she was prevented by circumstances which was beyond her control. Even after such explanation has been given the Court has not dealt with the same and in a straitjacket formula rejected the explanation and refused to accept the written statement.

After hearing Mr. Banerjee and after considering the order impugned as also the explanation given by the defendant petitioner, this Court is satisfied that it is an exceptional case where the Court ought to have accepted the written statement and if the Court so desires could have imposed costs but the Court without doing so has straightway refused to accept the written statement. This Court does not agree with the finding made by the learned Court below. The order impugned is set aside.

The revisional application is allowed. However, considering the explanation given by the defendant/petitioner this Court does not wish to impose any costs.