Manoj Mahto vs Kaleshwar Mahato and Others

Prashant Kumar, J.—This application has been filed for quashing the order dated 16.05.2008, whereby the application of petitioner for recalling the order dated 22.11.2005 has been rejected by the learned Court below.

It appears that the petitioner was impleaded in the suit as defendant vide order dated 04.08.2005 and on that day itself he had been directed to file written statement within seven days. The impugned order further reveals that petitioner did not file written statement though 105 days expired from the date of aforesaid order and it appears that because of that, he has been debarred from filing written statement vide order dated 22.11.2005. Petitioner thereafter filed cross suit on 21.12.2005, but on that date also he had not filed written statement Thereafter on 31st of January, 2007 petitioner filed present application praying therein that the order dated 22.11.2005 be recalled and his cross suit be treated as written statement. The aforesaid prayer has been rejected by the impugned order.

It is submitted by Sri Arvind Kumar, learned counsel for the petitioner that the plaintiff-respondent filed a writ application in this Court vide W.P. (C) No. 6980 of 2005 against the order dated 04.08.2005 by which the petitioner was impleaded in the suit as defendant. It is submitted that because of the said pendency of the writ application petitioner could not file written statement within the time stipulated by the learned Court below. Accordingly, it is submitted that petitioner had valid reason for not filing written statement within time. Accordingly, it is submitted that in the interest of justice the impugned order be quashed and order dated 22.11.2005 be recalled.

On the other hand. Sri Arvind Kumar Choudhary, learned counsel for respondent Nos. 1 to 4 submits that now the suit is in its fag end as the same is running under the heading ''For Argument''. It is further submitted that petitioner has not given any reasonable explanation as to why he had not filed written statement for about 1-1/2 years from the date of order passed by the learned Court below. It is further submitted that the explanation given by the petitioner for the said delay i.e. the pendency of W.P. (C) No. 6980 of 2005 also appears to be misleading and misconceived. It is submitted that the W.P. (C) No. 6980 of 2005 disposed of on 04.04.2008, thus, if the petitioner had not filed the written statement due to the pendency of the aforesaid writ application then he ought to have filed the aforesaid application for recall after 04.04.2008, but in the instant case said application filed on 31st of January, 2007 i.e. about 1 year and 3 months before the date of disposal of writ application. Thus, the explanation given by the petitioner is not reasonable.

It has been held by their lordships of Supreme Court in Kailash v. Nanhku and Ore. reported in 2005 (4) JLJR 1 (SC) that Order VIII, Rule 1 of CPC is directory and not mandatory. However, in the said decision their lordships further held that in no case, shall the defendant be permitted to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of defendant or his counsel.

As in the instant case no plausible explanation given as to why there was delay in filing written statement, thus I conclude that it is a case of negligence on the part of defendant. Thus, I find that the learned Court below had rightly debarred him from filing written statement. Accordingly, I find no reason to interfere with the impugned order. Hence, this writ application is dismissed. Application dismissed.