High Court · 2010

Heard Mr SK Medhi, learned counsel for the petitioner as well as Mr KR Surana, l earned counsel for the respondent No.1. There is no need to issue notice to respondent Nos.2 to 7 as the petitio ner has challenged the order dated 29th July 2010 passed by the learned Civil Ju dge No.1, Kamrup at Guwahati, in so far it relates to Petition No.1814/10 filed by present respondent No.1/defendant No.1, allowing the prayer made in the said petition for filing written statement after disposal of the preliminary objectio n raised by the respondent No.1/defendant No.1 on the point of maintainability o f the suit. The petitioner, who is the plaintiff in Title Suit No.8/2010 presently p ending in the Court of learned Civil Judge No.1, Kamrup at Guwahati, has filed t his petition challenging the order dated 29th July 2010 in so far it relates to Petition No.1814/10 filed by the present respondent No.1/defendant No.1. The pet itioner, as plaintiff, instituted the said suit for declaration of right, title and interest in respect of the schedule-A property, for confirmation of possessi on, for declaration that the mortgage dated 14th October 2006 created by the def endant Nos.2 to 5 in favour of the respondent No.1/defendant No.1 is fraudulent and null and void as well as for permanent injunction, apart from a further pray er for a direction to the defendant Nos.2 to 7 to pay jointly and severally a su m of Rs.75 lakhs as compensation for the loss suffered by the plaintiff for the fraudulent acts committed by them. The said suit was registered on 7th January 2 010, and the next date for return of the service report and filing of the writte n statement was fixed on 6th February 2010. The required steps, however, was tak en by the plaintiff for issuance of summons on 10th February 2010, for which on 6th February 2010, the Court passed an order fixing 29th March 2010 for service report on defendant Nos.2 to 7 and for filing of the written statement by all th e defendants. On 6th February 2010, the respondent No.1/defendant No.1, however, entered appearance and filed an application raising the question of jurisdictio n of that Court to entertain the said suit, in view of the provisions of the SAR FAESI Act of 2002, when the learned Civil Judge allowed time to the plaintiff to file objection fixing 29th March 2010. On this date, the plaintiff has filed wr itten objection against the petition filed by the respondent No.1/ defendant No. 1 relating to the jurisdiction of the suit. On the date, an application under Order 39 Rule 3-A of CPC was also filed by the respondent no.1 praying for vacat ion of the exparte order of injunction passed in the said suit. The Court fixed 21st April 2010 as next date for necessary orders. On that date, the case was fi xed on 18th May 2010 for service report on the defendants who have not entered a ppearance, as the defendant Nos.2,3,4 and 6 in the meantime entered appearance o n 21st April 2010. Thereafter, the case was fixed on 18th May 2010 for filing wr itten statement by all the defendants and also for objection hearing on the peti tion filed by respondent No.1 relating to the jurisdiction/maintainability of th e suit as well as for filing objection against the petition filed by the respond ent No.1 for vacation of the order of injunction. On 18th May 2010, the suit was re-fixed on 18th June 2010 for filing the written statement and objection again st the prayer for vacating the order of injunction as well as for objection hear ing on the petition filed raising the question of maintainability of the suit. T he case was thereafter adjourned till 29th July 2010, when Petition No.1814/10 w as filed by the present respondent No.1/defendant No.1 when the prayer to file t he written statement only after disposal of the question of maintainability of t he suit, as raised by them vide Petition No.314/10 was allowed. This order is pu t to challenge by the petitioner/plaintiff. It is submitted by learned counsel for the petitioner that Order 8 Rule 1 of CPC requires filing of the written statement within a maximum outer-limit o f 90 days from the date of service of summons and, in the instant case, as the d efendant No.1 has entered appearance on 6th December 2010, the time-limit for fi ling the written statement expired on 5th May 2010. Learned counsel, therefore, submits that though for good and sufficient reason, the time-limit prescribed un der Order 8 Rule 1 of CPC can be extended by the learned court below, it cannot indefinitely postpone the filing of the written statement as has been done in th e instant case at the instance of the respondent No.1/defendant No.1. Learned co unsel submits that the order dated 29th July 2010 in so far it relates to allowi ng Petition No.1814/10 be set aside. Learned counsel for the respondent No.1/ defendant No.1 , on the other h and, submits that since Petition No.314/10 has been filed raising the question o f maintainability of the suit, in view of the provisions of the 2002 Act, no ill egality has been committed by the learned court below in passing the impugned or der dated 29th July 2010, in so far it relates to allowing Petition No.1814/10 f iled by the respondent No.1/ defendant No.1. Learned counsel further submits tha t in the event this Court finds that the filing of the written statement cannot indefinitely be postponed, the respondent No.1 is ready to file written statemen t within a week from today. Order 8 Rule 1 of CPC requires the defendant to file the written stateme nt of his defence within 30 days from the date of service of summons. The provis o to Rule 1 thereof empowers the Court to extend the time beyond the period of 3 0 days allowing the defendant to file written statement, but not later than 90 d ays from the date of service of summons, for the reasons to be recorded in writi ng. It is already held by the apex court that the provisions contained in Order 8 Rule 1 of CPC is not mandatory but directory and the Court, for good and suffi cient reason, can extend the time for filing the written statement even beyond 9 0 days. In the case at hand, the defendant No.1, even before receipt of summons, entered appearance in the suit, as it appears from the order sheet dated 6th Fe bruary 2010 annexed to this petition that steps for issuance of summons was take n by the petitioner/ plaintiff only on 10th February 2010. On that date, the def endant No.1 filed Petition No.314/10 for deciding the question of maintainabilit y of the suit first, with a prayer for grant of time to file the written stateme nt, as it appears from the order sheet maintained in the suit. That prayer was a llowed fixing 18th June 2010. On 29th July 2010, Petition No.1814/10 was filed b y the defendant No.1 for allowing them to file the written statement only after the decision on the point of maintainability of the suit is given, which prayer has been allowed by the learned court below vide order dated 29th July 2010. The order dated 29th July 2010 passed by the learned court below has the effect of indefinite postponement of the filing of the written statement, which cannot be allowed, even though the provisions of Order 8 Rule 1 of CPC is not m andatory. The objective of Order 8 Rule 1 of CPC is that the disposal of the sui t does not get delayed due to non-filing of the written statement by the defenda nts. In the instant case, it appears that the question of maintainability of the suit has been raised, and the learned court below decided to record the finding on that issue first. Then also, the learned court below cannot postpone the fil ing of the written statement for an indefinite period of time.. That being the position, the order dated 29th July 2010 passed by the le arned court below allowing the prayer made in Petition No.1814/10 filed by the r espondent No.1/defendant No.1 is set aside. The learned court below, however, sh all accept the written statement of the respondent No.1/defendant No.1, provided the same is filed within one week from today. Such time is granted keeping in v iew the fact that the prayer made by the respondent No.1/defendant No.1 has been allowed by the learned court below which has been interfered with by this order . The parties are directed to appear before the learned court below on 20th Nove mber 2010. However, the respondent No.1/ defendant No.1 shall file their written statement within one week from today. The revision petition is allowed to the extent indicated above. No costs .