Sri Sri Ramji Gossain and Others vs Smt. Lalita Dutt and Another

Prasenjit Mandal, J.—This application is at the instance of the plaintiffs and is directed against the Order No. 118 dated February 22, 2012 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Title Suit No. 189 of 2002 thereby accepting the written statement filed by the defendants after over of the period as mentioned in Order 8 Rule 1 of the C.P.C. The plaintiffs / petitioners herein instituted the aforesaid suit for a decree of permanent injunction restraining the defendants / opposite parties herein from selling and/or transferring or disposing the premises in suit as described in the schedule to the plaint to any third party. The said suit was filed on July 30, 2002 and the defendants entered an appearance in the said suit on September 30, 2002 and filed a petition praying for time to file a written statement but they did not file any Vakalatnama. Thereafter, the Court directed on several occasions to file Vakalatnama for the defendants. Both the parties to the suit proceeded with the matters appearing before the learned Trial Judge and ultimately, the defendants filed a written statement on November 29, 2011 along with a show-cause and also for vacating the ex parte hearing of the suit. That written statement was accepted by the impugned order with costs of Rs. 5,000/- to the plaintiffs. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Advocates of both the sides and on perusal of the materials on record, I find that the learned Trial Judge has failed to exercise the jurisdiction properly. Order 8 Rule 1 of the C.P.C. clearly lays down how the written statement is to be filed including the period of limitation within which such written statement is to be filed.

As recorded above, the defendants entered an appearance on September 30, 2002 and the written statement was filed only on November 29, 2011, that is, more than lapse of 9 years from the date of appearance for the first time in the suit.

Mr. Tapas Mukherjee, learned Advocate appearing for the opposite parties has contended that the appearance on September 30, 2002 without any Vakalatnama is not at all an appearance and as such, it should not be taken into consideration. With due respect to Mr. Mukherjee, I am of the view that this submission cannot be accepted.

The petitioners have filed the certified copy of all order-sheets of the said suit from which it reveals that on September 30, 2002 the opposite parties entered an appearance and prayed for time. Thereafter, the opposite parties filed hajira and participated in the proceedings and appropriate orders have been passed in this regard. The suit proceeded in such a way and the written statement was filed only on November 29, 2011 when the learned Trial Judge was going to take up the suit for ex parte hearing. The defendant no. 1 has taken the plea that she is a senior citizen and is suffering from various ailments and as such, it was not possible for her to take steps earlier. This ground, I hold, cannot be accepted inasmuch as the opposite party no. 2 is the son of the opposite party no. 1 and so, the opposite party no. 2 could well have taken necessary steps in the suit at earlier point of time. Since, the defendants had participated in the said title suit, the contention that the appearance on September 30, 2002 without Vakalatnama, is not, at all, an appearance, cannot be accepted at all. The grounds of delay as furnished by the defendants are not convincing at all.

By a decision of this Bench reported in 2011(1) CLJ. (Cal) 292, this Bench has dealt with several decisions starting from the case of Kailash Vs. Nanhku and Others, and thus, has concluded that when the defendants failed to explain sufficient cause for not filing the written statement earlier in compliance with Order 8 Rule 1 of the C.P.C. belated written statement cannot be accepted. Similar is the situation in respect of the present matter.

So, in view of the said decision, I am of the opinion that the learned Trial Judge is not justified at all to accept the belated written statement upon payment of costs. The impugned order cannot, therefore, be sustained. The learned Trial Judge has failed to exercise the jurisdiction properly.

This application, therefore, succeeds and is allowed. The impugned order is hereby set aside.

The written statement filed by the defendants / opposite parties herein stands ''not accepted''. The learned Trial Judge shall proceed with the suit from that stage in accordance with law.

Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.