Amulya Kumar Biswal vs Bijaylaxmi Biswal

Dr.A.K.Rath, J

By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 5.12.2016 passed by the learned Civil Judge

(Jr.Division), Salipur in C.S.No.99 of 2014, whereby and whereunder, learned trial court has rejected the application of the defendant to accept the

written statement-cum-counter claim.

The plaintiff-opposite party instituted the suit for partition. On 11.9.2014 the defendant-petitioner entered appearance and took time to file written

statement. Time petition was allowed. Thereafter he took several adjournments to file written statement. Finally by order dated 21.3.2015 he was

debarred from filing of the written statement, but allowed to contest the suit. The suit was decreed ex parte on 20.7.2015. Thereafter he filed CMA

No.127 of 2015 under Order 9 Rule 13 CPC to set aside the ex parte judgment. On 12.8.2016, ex parte judgment was set aside. While matter stood

thus, he filed an application under Order 8 Rule 1 CPC on 28.9.2016 to accept the written statement-cum-counter claim stating that he took several

adjournments to file written statement. He was ill from 25.4.2015 to 12.7.2015 and 13.7.2015 to 4.8.2015. The suit was decreed ex parte. After

recovery from illness, he filed an application under Order 9 Rule 13 CPC to set aside the ex parte judgment dated 20.7.2015. The same was allowed.

There was no latches. Placing reliance on a decision of this Court in the case of State of Orissa and others v. Smt.Sitanjali Jena, 121 (2016) CLT 492,

learned trial court held that the defendant can participate in hearing of the suit and cross-examine the plaintiff’s witnesses. Held so, it rejected the

petition.

Heard Mr.Arun Kumar Mishra-2, learned counsel for the petitioner and Mr.Damodar Patra, learned counsel for the opposite party.

Mr.Mishra-2, learned counsel for the petitioner submitted that the cause of action for filing of the counter claim arose after the date of presentation

of the plaint. The defendant filed an application to file written statement after ex parte judgment was passed. Learned trial court observed that the

same has become infructuous. After ex parte judgment was set aside, he filed the written statement-cum-counter claim along with an application to

accept the same. The defendant assigned sufficient cause in not filing the written statement in time. The order suffers from vice of non-application

mind.

Per contra, Mr.Patra, learned counsel for the opposite party submitted that the defendant took several adjournments to file written statement. He

did not file the written statement. He was set ex parte. He was debarred from filing of the written statement on 21. 3.2015. The said order has

attained finality. The ex parte judgment was pronounced. Thereafter, he filed an application to set aside the ex parte judgment. The application was

allowed. Once the ex parte judgment is set aside, the defendant is relegated back to the position when the suit was posted for ex parte hearing. In the

petition no reason has been assigned to accept the written statement filed at a belated stage.

Order 8 Rule 1 CPC, which is the hub of the issue, is quoted hereunder:

“1. Written Statement â€" The defendant shall, within thirty days from the date of service of summons on him, present a written statement on his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, 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 service of summons.â€​

Order 8 Rule 1 CPC was the subject matter of interpretation in the case M/s.SCG Contracts India Pvt. Ltd. v. K.S.Chamankar Infrastructure Pvt.

Ltd. and others, 2019 SCC OnLine SC 226. The apex Court held thatth e provisions of Order VIII Rules 1 and 10 can no longer be said to be

directory, but can only be said to be mandatory. It was held that as an Order VII Rule 11 application had been filed and that had to be answered

before trial of the suit could commence, it was clear that a written statement could not be filed. Further Sec.151 of the Code of Civil Procedure which

preserves the inherent power of the court, more particularly, that of a court of record, the High Court, and can be invoked in cases like the present

where grossly unjust consequences would otherwise ensue. It was further held that a perusal of these provisions would show that ordinarily a written

statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the court may employ for reasons to

be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the

fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not

allow the written statement to be taken on record. This is further buttressed by the proviso in order VIII Rule 10 also adding that the court has no

further power to extend the time beyond this period of 120 days. The apex Court held:

“13. Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended

provisions of the CPC will have to be held to be mandatory. [See Oku Tech Private Limited vs. Sangeet Agarwal & Ors. by a learned Single Judge of the Delhi High

Court dated 11.08.2016 in CS (OS) No.3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics vs. Oasis

Commercial Pvt. Ltd. 2018 SCC Online Del 6698.

We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the

written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that

the earlier law on Order VIII Rule 1 on the filing of written statement under Order VIII Rule 1 has now been set at naught.â€​

On the anvil of the decision cited supra, the instant case may be examined. The defendant appeared on 11.9.2014. He took several adjournments to

file written statement. No written statement was filed. He was debarred from filing of the written statement on 21. 3.2015. Learned trial court allowed

him to participate in the hearing. The said order has attained finality. Thereafter the suit was posted for ex parte hearing on several dates. Finally ex

parte judgment was pronounced on 20.7.2015. On the application of the defendant under Order 9 Rule 13 CPC, the ex parte judgment was set aside

on 12.8.2016. The defendant rose from the deep slumber and filed written statement-cum-counter claim with an application to accept the same on

jejune grounds. Merely stating that he was ill from 25.4.2015 to 12.7.2015 and 13.7.2015 to 4.8.2015 is not suffice in the absence of any documents to

that effect. The written statement was filed after inordinate delay of two years.

True it is, provision contained in Order 8 Rule 10 CPC do not take away the power of the Court to accept the written statement beyond the

prescribed period of time, but then the time can be extended only in exceptionally hard cases as held by the apex Court in the case of Atcom

Technologies Limited vs. Y.A. Chunawala and Company and others, (2018) 6 SCC 639. An application under Order 9 Rule 13 CPC cannot be

made for retrieving the lost opportunity to file the written statement.

In Smt.Sitanjali Jena, this Court held that when an ex parte decree is set aside and the suit is restored to file, the defendants cannot be relegated

back to the position prior to the date of hearing of the suit. He would be debarred from filing any written statement in the suit, but then he can

participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff, adduce evidence and address argument.

In the wake of aforesaid, the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.

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