Bhishmlal and Another vs Ataullha Khan

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution of India, is directed against the order dated 22.3.2010 passed in Civil Suit No. 115-A/09. By this order the Court below has considered the application dated 15.3.2010. The petitioner/defendant in the aforesaid civil suit preferred the aforesaid application dated 15.3.2010. After obtaining reply of the other side, the Court below has decided the said application by impugned order dated 22.3.2010. The application was objected by the plaintiff on the ground that the petitioner/defendant has not filed his written statement within 90 days as provided in the CPC and, therefore, the said application must be rejected. The Court below after hearing the parties opined that the plaintiff filed his own affidavit on 4.3.2010. Various other documents were also filed by the plaintiff along with the affidavit. The petitioner/defendant appeared before the Court below on 15.12.2009 but did not file written statement for considerable long time. Thus, the Court below thought it proper not to grant any further time to file written statement and accordingly right to file written statement was closed.

It is contended by the petitioner/defendant that in Sambhaji and Others Vs. Gangabai and Others, and Girwar Singh Vs. Jhanak Singh and Others, it is held that the provision in the C.P.C. for filing written statement within 90 days is a directory provision. Thus, in a mechanical manner if written statement is not filed, the opportunity should not be taken away and the Court below should examine the reasons for not filing written statement by the defendant.

I have heard the learned counsel for the parties and perused the record.

A bare perusal of the aforesaid legal position makes it clear that time limit of 90 days for filing the written statement mentioned in C.P.C. is a directory provision. Accordingly, in a mechanical manner merely because 90 days are over, the said right cannot be closed. In the present case, the contention of the petitioner/defendant is that the matter was fixed for hearing of certain miscellaneous applications by the Court below. When those applications were decided, the petitioner/defendant should have been given some reasonable time to file written statement. Considering the aforesaid, I deem it proper to grant a last opportunity to the petitioner to file written statement before the Court below. However, because of non-filing of written statement, delay is caused by the petitioner/defendant, I deem it proper to grant the said opportunity subject to payment of Rs. 3000/- as cost to the other side. Accordingly, petition is allowed. The impugned order is set aside subject to payment of aforesaid cost. On payment of cost, written statement may be taken on record. The Court below will proceed with the matter from that stage in accordance with law.