High Court
Legal Reasoning
Heard Mr.A.M.Buzarbaruah, learned counsel for the petitioner. By this application filed under Article 227 of the Constitution of India , the petitioner who is the plaintiff in T.S.No. 37 of 2008, pending before the learned Munsiff, North Salmara, Abhayapuri has challenged the orders dated 17.1 .11, 15.2.11, 17.3.11, 13.4.2011, 22.11.11, passed by the learned Munsiff, in T .S.No. 37 of 2008. The petitioner as plaintiff instituted the said title suit, s eeking a declaration and for perpetual injunction in respect of the suit land wi th a further declaration that the plaintiff acquired a right by prescription ove r a path measuring 79 x 8 feet over the schedule B land owned by the defendant . The plaintiff’s claim has been contested by the defendant i.e. the respondent by filing written statement . Subsequently, after receiving certain information from the Abhayapuri town Committee on the basis of application filed under RTI Act, the plaintiff came to know that the boundary wall, erected by the defendant on the disputed land, was without any permission from the Town Committee. After discovery of such fact, the plaintiff prayed for amendment of the plaint and ac cordingly, the plaintiff sought to add the following:- (cid:28)the said boundary wall is unauthorised and illegal and deserve demolition forth with. The said fact came to the knowledge of the plaintiff pursuant to a communi cation bearing No. ATC.1-36/08/447 dated 24.10.2008 issued by the Chairman, Abha yapuri upon application dated 01/09/2008 made by his son Sri Indrajit Mozumdar regarding the permission of constrtuction of boundary wall over the suit land by the town committee, Abhayapuri. It was intimated by the town Committee that the town Committee never issued any permission for construction of boundary wall o ver the suit premises and the design of the mentioned boundary wall has not also been approved. (cid:29) Accordingly the plaintiff filed an amended plaint on 4.12.2009. The defendant d id not file any written statement against the said amended plaint. The suit was fixed for evidence after framing of issues. Thereafter, on 17.1.11, the defendan ts, by filing petition No.43, prayed for permission for allowing them to file wr itten statement against the amended plaint. After hearing both the parties the learned Munsiff, by passing the following order, allowed the said prayer and fi xed 15.2.11 for filing of written statement against the amended plaint: (cid:28)17.1.11. Parties are represented. Seen the pt.No. 43 filed by the deft. Side, prayed for allowing them to submit w/s against the amended plaint submitted by the plaintiff on 4.12.09. Heard both sides and for the ends of Justice prayer is allowed. Fix. 15.2.11 for w/s against the amended plaint. (cid:29) Subsequently, on being prayed for vide orders, dated 15.2.11, 17.3.11 and 13.4.1 1, time was granted to file written statement against the amended plaint and a ccordingly on 9.5.11 was fixed for submission of the written statement. On 9.5. 11 the defendant filed written statement against the amended plaint. However, th e plaintiff also filed Petition No.559/11,raising objection to the filing of the written statement by the defendant. Accordingly the court fixed the matter on 2 0.6.11 for hearing on the said petition No. 559/11, The hearing of the said peti tion was also adjourned and finally by order dated 22.11.11, the learned Munsiff rejected the objection, raised by the plaintiff, against the filing of the writ ten statement by the defendant and posted the case for framing the issue on 4.1 .12. Aggrieved by the said order dated 22.11.11 the petitioner has come up w ith this petition . Mr.AM Buzarbaruah learned counsel has submitted that in view of the statutory provision, prescribed by Code of Civil Procedure, the written statemen t should not have been accepted after expiry of 90 days and the learned trial Judge committed error by accepting the written statement by the impugned order. The learned Munsiff by the impugned order observed that 9.5.11 was the date fixe d for submission of written statement on which date the defendant had filed writ ten statement as fixed by the Court, even after expiry of the statutory period. The learned Munsiff also observed that the defendant should not suffer due to the error of the Court and accordingly rejected the objection raised by the pla intiff. From the impugned orders aforesaid more particularly the order dated 17. 1.11, it is found that the learned Munsiff, after hearing both the parties, allo wed the defendant to file written statement and fixed 15.2.11 as the date for fi ling of the written statement. In my considered opinion the prayer to file written statement was allowe d by the said order dated 17.1.11. At the time of passing the said order and eve n after passing of the said order the plaintiff did not raise objection. The pla intiff raised objection after filing of the written statement on 9.5.11. In fact the filing of the written statement was the compliance of the order dated 17.1. 11. Be that as it may, considering the matter in its entirety and the relief claimed by the plaintiff, I am of the considered opinion that filing of the wri tten statement at the belated stage does not appear to have caused any prejudice to the plaintiff except causing delay. That apart the suit is pending for dispo sal since 2008. As the written statement has already been accepted the main sui t should be disposed of without delay.
Decision
In view of the above, considering the delay in disposal of the suit, I a m of the opinion that the controversy regarding filing of the written statement should not detain the further proceeding of the suit. In view of the above, I find no sufficient ground for interfering with t he impugned order. However, as the written statement was accepted at the belated stage i.e. after expiry of statutory period, causing interruption in the proces s, the learned Munsiff ought to have granted some cost in favour of the plaintif f. Therefore I direct that an amount of Rs.500/- be paid to the plaintiff by the defendant . With the above direction, this civil revision petition is disposed of.