Sinda Devi vs District Judge District Ambedkar Nagar

Ritu Raj Awasthi, J.—Heard learned counsel for the petitioner and perused the records.

This writ petition has been filed challenging the order dated 9.4.2015 passed in Original Suit No. 08 of 2012; Asharfi Lal v. Sinda Devi & others as well as the order dated 7.7.2015 passed in the revision whereby the learned trial court has ordered for proceeding ex parte against the petitioner/defendant and fixed the date for evidence. The revision preferred against the said order has been dismissed.

Learned counsel for the petitioner tried to submit that the period of 30 days as provided under Order 8, Rule 1 CPC is not mandatory in case there are cogent reasons for the delay in filing of the written statements, the Court can extent the period and permit the defendant to file written statements. It is also submitted that there were some cogent reasons in not filing the written statements within time, however the said reasons have not been considered by the trial court while passing the impugned orders dated 6.8.2013 as well as 9.4.2015.

It is submitted that the revisional court has also not considered the contention raised in the revision and has dismissed the revision in a most cursory manner.

I have considered the submissions made by learned counsel for the petitioner and gone through the records.

The perusal of the order dated 6.8.2013 passed by the trial court indicates the conduct of the petitioner. It has been noted by the trial court in its order that in spite of several dates the petitioner/defendant has failed to file written statements. As on 21.3.2012, the application of the petitioner for grant of further time for filing written statements was allowed at the cost of Rs. 50/-, again on 15.5.2013 the time was extended for filing written statements at the cost of Rs. 80/-, again on 28.5.2013, the time was extended by filing written statements at the cost of Rs. 150/-, again on 8.7.2013, the petitioner was granted last opportunity to file the written statements at the cost of Rs. 350/-, however in spite of that he has not filed the written statements.

The Court has also noted that 17 dates were fixed for filing of the written statements of the petitioner/defendant but the petitioner/defendant did not file the written statements, as such the learned trial court has decided to proceed ex parte against the petitioner/defendant.

It is to be noted that as per the law laid down by the Apex Court in the case of Kailash v. Nanhku and others; (2005) 4 SCC 480, there is power of the Court for granting extension of time for filing written statements under Order 8, Rule 1 C.P.C., in the facts and circumstances of the case, if the Court is satisfied can extend the time for filing of the written statements. Such power is discretionary and the period of extension prescribed under Order 8, Rule 1 CPC is not mandatory.

There is no dispute to the aforesaid legal proposition. It will depend on the facts and circumstances of each case as to whether discretion for extending the time to file written statements is to be exercised or not. In case the Court is satisfied that there are cogent reasons to grant extension of time again and again for filing written statements, the Court can grant such extension, however where the Court is of the view that the defendants is intentional and deliberately delaying the proceedings and not filing written statements it can refuse the extension of time for filing written statements.

In the present case the perusal of the impugned order clearly indicates the conduct of the petitioner as in spite of 17 dates having been fixed by the trial court for filing of the written statements, no written statements was filed by the petitioner/defendant. As such, I am of the considered view that the view taken by the trial court was just and proper in refusing to grant any further time for filing of the written statements and proceeding ex parte. The order impugned does not require any interference.

The writ petition being devoid of merits is dismissed.

However, it is made clear that in case the trial court feels proper it can permit the petitioner/defendant the opportunity of cross examination.