Sudhakar Sahoo And Others vs Ashok Kumar Dey And Others

B.P. Routray, J

Mr. S. Mishra, learned counsel appears for Opposite Parties 2, 4 to 7. The power filed by him is kept on record.

Heard Mr. P.K. Panda, learned Advocate for the Petitioners, Mr. S. Mahapatra, learned Advocate for Opposite Party No.1 and Mr. S. Mishra, learned counsel for Opposite Parties 2, 4 to 7.

Present C.M.P. is directed against the order dated 11.12.2024 of learned Additional Senior Civil Judge, Puri passed in C.S. No.733 of 2015, wherein the prayer of the Defendants 2(a), 2(c) & 2(d) to accept their written statement by setting aside the ex-parte order has been rejected.

Present Petitioners are Defendants 2(a), 2(c) & 2(d) in the suit which was filed by the present Opposite Party No.1 praying for declaration of right, title and interest, confirmation of possession and permanent injunction along with other consequential reliefs. Present Petitioners were set ex-parte on 29.03.2017 and then the suit proceeded against other Defendants, where the Plaintiff adduced his evidence and other Defendants are at the stage of continuing their evidence. At this stage, present Petitioners being Defendants 2(a), 2(c) & 2(d) filed a petition on 21.08.2024 praying to set aside the ex-parte order passed against them along with a petition to accept the written statement on their behalf. Said prayer of the Defendants 2(a), 2(c) & 2(d) was not objected by the Plaintiff, but it was objected by other Defendants. Present Opposite Parties 2, 4 to 7, who are the Defendants 1, 2(b), 2(c), 2(f) and 2(g) objected such prayer of present petioner mainly on the ground of delay and that the Plaintiff has closed his evidence. It needs to be mentioned here that, all the Defendants are the sons and daughters of Defendant No.2 and they have inter se dispute among them.

It is well settled that the Defendant should not generally be deprived of filing his written statement which is a substantial right on his part. Hon’ble Apex Court in Sumtibai v. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.), (2007) 10 SCC 82, have observed that, “Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence.”

Further in Zolba v. Keshao, (2008) 11 SCC 769, it has been held as follows;

“13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period mentioned in the proviso to Order 8 Rule 1 CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature.

In Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344 : AIR 2005 SC 3353] it has been clearly held that the provisions including the proviso to Order 8 Rule 1 CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted even after the expiry of 90 days from the date of service of summons in exceptionally hard cases. It has also been held in that decision that the use of the word “shall” in Order 8 Rule 1 CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the decision in that case, the same can be construed as directory. In AIR para 21 of the said decision, this Court observed as follows : (SCC p. 364, para 20)

“20. The use of the word ‘shall’ in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.”

Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice.”

In the case at hand, it is the contention of the present Petitioners that the fault on their part is indeliberate since the conducting counsel failed to inform them properly about progress of the suit. It is also submitted on behalf of the Petitioners that the order setting them ex-parte was not intimated to them and they were under bona fide impression that they are contesting in the suit. But at the stage of evidence, they came to know that they were earlier set ex-parte vide order dated 29.03.2017 and so they immediately filed the petition to set aside the order with a prayer to accept the written statement on their part.

It is true that, the present Petitioners being Defendants 2(a), 2(c) and 2(d) approached the Court at belated stage and now the evidence from the side of the Plaintiff has been closed. But keeping in view their substantial right to raise their written defence by way of W.S., since no objection was raised from the side of the Plaintiff to such prayer of Defendants 2(a), 2(c) and 2(d) to grant them the opportunity of hearing by filing the written statement, there would not be any harm caused to the adversaries of said Defendants and for the delay, the parties may be compensated by way of cost.

In the circumstances, the prayer of Defendants 2(a), 2(c) & 2(d) is allowed and the impugned order dated 11.12.2024 of learned Additional Senior Civil Judge, Puri passed in C.S. No.733 of 2015 is set aside. The Defendants 2(a), 2(c) & 2(d) are permitted to participate in the suit and the written statement filed on their behalf may be accepted on record subject to payment of cost of Rs.5000/- (rupees five thousand) to other Defendants.

With the aforesaid observations and directions, the C.M.P. is disposed of.