Raj Kumar 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. 116-A/2009 whereby the Court below has closed the right to file written statement of the petitioner/defendant. In a civil suit for recovery of rent, the right to file written statement of the petitioner/defendant is closed down. It is contended that on 16.2.2010 the case was closed for argument on a miscellaneous application. After decision of the said application, the petitioner/defendant should have been given a reasonable opportunity to file written statement. It is further contended in the light of Sambhaji and Others Vs. Gangabai and Others, and Girwar Singh Vs. Jhanak Singh and Others, that 90 days time limit mentioned in C.P.C. to file written statement is directory and not mandatory in nature. Thus, the order of Court below was criticized.

The other side represented by Shri Surendra Khare supported the order passed by the Court below.

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

In view of the judgments cited by the petitioner/defendant, it is clear that it is now trite in law that 90 days time limit for filing written statement is a directory provision and merely because written statement is not filed in 90 days, the right to file written statement cannot be mechanically closed.

A perusal of the order sheet dated 4.3.2010 shows that earlier an application preferred by the petitioner/defendant under Order 11 Rule 21 read with Section 151 C.P.C. was decided by the Court below. Thereafter, the matter was fixed on 15.3.2010. On the said date, the plaintiff filed written statement. On the next date, the Court closed the right to file written statement. In the aforesaid circumstances and on account of the fact that 90 days time to file written statement is only a directory provision, I deem it proper to grant a last opportunity to the petitioner/defendant to file written statement before the Court below. Accordingly, the order dated 22.3.2010 is set aside. The petitioner shall be afforded last opportunity to file written statement by the Court subject to payment of Rs. 3000/- as cost. If cost is paid, written statement shall be taken on record. The Court below will proceed with the matter from that stage in accordance with law.