Hari Ganjhu vs Radhey Shyam Prasad

Aparesh Kumar Singh, J.—Heard learned counsel for the parties.

The order dated 25th February, 2016 is quoted hereunder, as it contains the gist of the dispute in question.

''learned counsel for the petitioners submits that by the impugned orders, petitioners, who were Defendant Nos. 4, 5, 7 to 9 have been debarred from filing written statement and the prayer for recall of the order has been rejected. It is submitted that petitioners appeared on 1-2-2012 and thereafter sought sometime to file written statement, which has been rejected by the impugned order on 25-5-2012 i.e. within 24 days beyond the period of 90 days. The Title Suit No.1 of 2012 is in relation to declaration of title over the suit land in confirmation of the possession. If the petitioners herein do not get the opportunity to file written statement in their defence, they would suffer irreparable loss and prejudice. In the interest of justice therefore petitioners may be allowed to file their written statement with adequate cost. It is submitted that proceedings in the Court below have progressed and it is at the stage of closure of evidence of the Plaintiffs.

Respondents have earlier been served notice, but no one has entered appearance on their behalf thereafter.

Issue fresh notices upon the respondents under ordinary process for which requisites etc. must be filed within a week, failing which, this application shall stand rejected without further reference to the Bench.

List this case on 12-4-2016. In the meantime further proceedings in Title Suit No.1 of 2012 pending in the Court of learned Civil Judge, Senior Division 1st, Chatra shall remain stayed.''?

Plaintiffs/respondents have appeared on notice and filed their counter-affidavit. A plea has been raised about the conduct of defendants/petitioners herein in unusually stretching the trial of the case even after their appearance on 1st February, 2012 itself. By now six plaintiffs - witnesses have been examined. It submitted that certain documents have also been exhibited. However, learned counsel for the respondents do not dispute that learned trial court passed an order debarring the defendants from filing written statement on 25th May, 2012 only after 24 days after the period of 90 days stipulated under Order 8, Rule 1 . It is submitted that the defendants have also not been able to show good reason for failing to file the written statement within the stipulated period of total 90 days.

This Court, however, is of the opinion that interest of justice would be served if defendants/petitioners herein are allowed to file written statement in Title Suit No.1/2012 pending in the Court of Civil Judge, Sr. Division, 1st, Chatra on payment of cost. The delay as noticed herein above in filing the written statement was 24 days only beyond 90 days after appearance of the defendants on 1st February, 2012 on service of summons. Therefore, without entering into the plea raised by the parties and the allegations relating to the conduct of the defendants in non-filing of the written statement within a period of 90 days from the date of service of summons, it is felt it proper and in the interest of justice that defendants petitioners herein be allowed to file their written statement in the court below on payment of cost of Rs.5,000/- to the plaintiffs. Counsel for the petitioners submits that the written statement has already been filed before the court below though after the order of debarment. Let it be taken on record with opportunity to the plaintiff to respond to them. Needless to say the learned Trial Court would proceed in the matter in accordance with law.

In that view of the matter, the order impugned dated 25th May, 2012 and 5th August, 2013 are set aside. The writ petition is accordingly allowed to the extent and in the manner indicated herein above Consequently, I.A. No. 1165 of 2016 stands disposed of.