Bimal Kumar Dutta vs Alok Kumar Mukherjee

This revisional application is directed against an order no. 17 dated August 24, 2017 passed by the Second Court of Civil Judge (Junior Division), Berhampore, Murshidabad in Other Suit No. 7 of 2015 by which an application for acceptance of the written-statement is rejected.

The trial court proceeded to dismiss the said application holding that in view of the proviso inserted to Order 8 Rule 1 of the Code of Civil Procedure by an Amending Act of 2002, the moment the outer limit provided therein exceeds, the court cannot extend the period. In other words, according to the trial court, by virtue of introduction of the proviso to Order 8 Rule 1 of the Code, the legislature intended the time limit indicated therein to be mandatory. The trial court, however, omits to take into consideration the second and third proviso inserted by the Rule Committee of the High Court, wherein the limit indicated in the first proviso was extended to 120 days with further stipulation that the court may extend the time beyond such outer cap, subject, however, to the satisfaction of the court that the circumstances was beyond the control of the defendant. In view of the added proviso applicable to the State of West Bengal, the court can extend the time provided sufficient grounds have been made out relating to the circumstances beyond the control of the defendant.

It appears in the instant case that the trial court extended the time to file written-statement till May 17, 2016. Before the said date the plaintiff/ petitioner therein moved a revisional application being CO 607 of 2016 before this court which came up for disposal on March 7, 2016 and was disposed of in the absence of the defendant/ opposite party therein directing the trial court to dispose of the suit as expeditiously as possible and preferably within fifteen months from the date of commencement of trial without granting unnecessary adjournments to either of the parties. It was further indicated therein that in the event, the defendant/opposite party fails to file the written-statement on or before May 17, 2016, the trial court shall proceed to hear the suit ex parte. However, in the ultimate paragraph the Hon''ble Judge of this court was conscious that the said order may be taken on surprise by the defendant/opposite party and directed the plaintiff/petitioner to communicate the said order to the defendant/opposite party by speed post and also the learned Advocate representing him in the court below within one week from date.

Obviously, the intention of the learned Judge was that the defendant/opposite party must be made aware that they are mandatorily required to file the written-statement by May 17, 2016. The learned Advocate of the defendant/ opposite party is unable to provide any document showing that the said order was communicated to the plaintiff/petitioner by speed post or to the learned Advocate representing him in the court below.

A shelter is sought to be taken that the said order was duly communicated to the court, which would be reflected in the order no. 5 darted April 6, 2016. This court does not find that the aforesaid stand can operate against the petitioner for the simple reason that the said date was not fixed in the suit and naturally the defendant was unaware of the said order being passed. However, on May 17, 2016, the date that was earlier fixed by the court, the learned Judge recorded that the photocopy of the order of the High Court filed by the plaintiff/opposite party is to be kept on record. However, the defendant/petitioner prays for an extension of time to file written-statement and in view of the said order of the High Court, the court rejected the said application and directed the suit to be heard ex parte.

It is undisputed that even thereafter the defendant continued to take time to file the written-statement but it is equally true that the court could not decide the suit ex parte until the written-statement was filed after a considerable delay. There is no hesitation in my mind that there has been a delay in filing the written4 statement by the petitioner yet the court has to consider whether the circumstance was beyond the control.

My attention is drawn to the averments made therein and it would not be wrong to say that the plaintiff/opposite party despite an order passed by this court in an earlier revisional application did not communicate the order to the defendant/petitioner in the manner as indicated therein. If the court was conscious that the said order may take the defendant by surprise, there is no justification on the part of the court to reject the application for adjournment on the said date as the said order was not communicated to him.

Each case has its own facts and largely varies from each other. It is a satisfaction of the court that the circumstance was such that the written-statement could not be filed on the said date and in view of the third proviso to Order 8 Rule 1 of the Code, the court may extend the time even beyond the outer cap.

In view of the findings recorded hereinabove, it cannot be said that the defendant/petitioner herein was only blameworthy but the conduct of the plaintiff/opposite party herein cannot be said to be free from any blame. There are apparent lapses and laches on the part of the plaintiff/opposite party in not complying with the directions passed in an earlier revisional application. Equally, the defendant/petitioner cannot be said to have acted diligently and no lapses and negligence can be attributed to his conduct. Since this court finds that the court must confine its scrutiny on the circumstances which stand in the way of the defendant/ petitioner in filing the written-statement within the time limit, and having found the same to be in conformity with the said proviso, the order impugned in the instant revisional application cannot be sustained.

The order impugned is thus set aside.

The trial court is directed to accept the written-statement filed by the defendant/ petitioner subject, however, to the payment of costs assessed at Rs.50,000/- to be paid to the learned Advocate-on-record of the plaintiff/ opposite party here, within ten days from date.

In default of the payment of the costs within the time indicated hereinabove, this order shall automatically stand recalled and the order of the trial court shall revive.

If the compliance as to the payment of costs, is made, the trial court is requested to dispose of the suit as expeditiously as possible without granting unnecessary adjournments to either of the parties and preferably within eight months from the date of communication of this order.

With these observations, the revisional application is disposed of. No order as to costs.