Sunil Kumar Agarwalla vs Deepak Kumar Agarwalla And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 24th January, 2024 (Annexure-4) passed by learned Civil Judge (Senior Division) (LR & LTV), Angul in C.S. No.199 of 2016 is under challenge in this CMP, whereby the prayer of the Defendant No.1-Petitioner for acceptance of his written statement, has been rejected.

Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed for partition. As there was a talk of amicable family settlement, written statement could not be filed. Since talk of amicable settlement was going on, the Defendant No.1-Petitioner did not also cross-examine the witnesses of the Plaintiff. But, the Plaintiff did not cooperate for an amicable settlement. In due process, the suit was posted for argument. Hence, finding no other alternative, the Petitioner filed an application for acceptance of his written statement, which has been rejected.

It is submitted that although there is a delay in filing the written statement, but the suit being one for partition, written statement filed by the Petitioner should have been accepted and he should have been given an opportunity of hearing. Learned trial Court without realizing the same, did not accept the written statement filed by the Petitioner being hyper technical. Hence, this CMP has been filed.

Considering the submission made by Mr. Mishra, learned counsel for the Petitioner and on perusal of the record, it appears that the suit was posted to 17th January, 2023 for filing of written statement. But, the Defendant No.1-Petitioner did not file the written statement on the said date and allowed the proceeding of the suit to continue. As such, learned trial Court proceeded to record evidence of the Plaintiff granting liberty to the Defendant No.1-Petitioner to contest the suit. When the suit was posted for argument, an application for acceptance of the written statement was filed.

Since the suit has proceeded substantially and it is posted for argument, I am not inclined to interfere with the impugned order under Annxure-4. However, the Defendant No.1-Petitioner may take part in the argument of the suit, if it is not disposed of by now without propounding his own case.

The CMP is accordingly disposed of.

Urgent certified copy of this order be granted on proper application.

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