The High Court
Case Details
THE HIGH COURT OF MEGHALAYA CRP[SH]42/2013 ….Petitioner Smti. Krishna Das Bhowmick, W/o Shri. M.K.Das Bhowmick, Represented by her attorney Shri Arunendu Bhowmick S/o Late K.P.Bhowmick R/o Laban, Shillong, East Khasi Hills District, Meghalaya. -VERSUS- Shri Ajoy Kumar Dutta, C/o “Sharmistha”. Sy.No.21/1 of Shillong Cantonment, Mawlonghat, Shillong, East Khasi Hills District, Meghalaya. Smti. Shilpi Dutta, W/o Shri Ajoy Kumar Dutta, Amrit Bazar Patrika Road, Shillong,East Khasi Hills District, Meghalaya. Shri Arindam Khongthohrem, S/o Shri Ajoy Kumar Dutta, Madan Laban, Shillong, East Khasi Hills District, Meghalaya. Shri Arun Khongthohrem, S.o Shri Ajoy Kumar Dutta, Madan Laban, Shillong, East Khasi Hills District, Meghalaya. 1. 2. 3. 4. …Respondents THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH BEFORE For the petitioner For the respondents Date of hearing Date of Judgment - - - -
Legal Reasoning
Mr. D.Mazumdar, Adv None appears 10-7-2013 10-7-2013 JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) Heard Mr. D. Mazumdar, learned counsel appearing for the petitioner. This revision petition is directed against the judgment and order of the learned Assistant Judge, Shillong dated 2-5-2013 passed in TS No. 3(H)2001 allowing the defendant No. 3 and 4 to file the written statement subject to the payment of cost of Rs. 2000/- . 2. For this judgment proposing to pass by this court, it may not be required to issue notice to the respondents, i.e. defendant No. 3 and 4 inasmuch as the impugned order dated 2-5-2013 is not going to be quashed in whole. 3. Mr. D.Mazumdar, learned counsel appearing for the petitioner/plaintiff strenuously contended that only for the purpose of delaying the speedy disposal of TS NO. 3(H) 2001, applications had been filed one after another by the different persons for impleadment as defendants. It is further stated that one application was filed by Smti. E.Eblura Khongthohrem for impleadment as a defendant in the TS No.3(H) 2001 claiming to be the second wife of the petitioner/plaintiff. The order of the learned Trail Court below allowing to implead Smti E.Eblura Khongthohrem as defendant in TS No.3 (H) 2001 had been set aside by this court (High Court) by an order dated 14-12-2007 passed in CR(P)No.(SH) 38/2006. Thereafter, other two persons, i.e. respondent No. 3 and 4 in the present revision petition filed another application for allowing them to be impleaded as defendant No. 3 and 4 respectively in TS No.3(H) 2001 claiming themselves to be the sons of the petitioner/plaintiff born to Smti E.Eblura Khongthohrem. The said order of the Trial Court for allowing the respondent No. 3 and 4 as defendants in the TS No.3(H) 2001 was not assailed by the petitioner by filing a revision petition or otherwise in the High Court. Therefore, the said order of the Trial Court for impleadment of respondent No. 3 and 4 as defendant No. 3 and 4 in TS. NO. 3(H) 2001 had attained finality. 2 4. Mr. D.Mazumdar, learned counsel appearing for the petitioner strenuously contended that the record itself shows very clearly that the defendant No. 3 and 4 had been given sufficient time to file the written statement. Inspite of that, the respondent No. 3 and 4 did not file their written statement and ultimately only for delaying the proceedings of TS No.3 (H) 2001, the respondent No. 3 and 4 filed an application for allowing them to file the written statement and also for setting aside the order for proceeding the TS No. 3(H) 2001 ex-parte against the respondent No. 3 and 4. By the impugned order dated 2-5-2013 passed in TS No.3(H) 2001, the respondent No. 3 and 4, i.e. defendant No. 3 and 4 had been allowed to file the written statement. 5. Mr. D.Mazumdar, learned counsel appearing for the petitioner strenuously contended that after expiry of the period for filing the written statement mentioned in Order 8 Rule 1 of the CPC, the defendans can file the written statement only when they could show special reasons for allowing them to file the written statement. In other words, after expiry of the period for filing the written statement mentioned in Order 8 Rule 1 of the CPC, written statement can be filed only in exceptional circumstances. Therefore, Mr. D. Mazumdar, learned counsel appearing for the petitioner contended that there is no exceptional circumstances for allowing defendant No.3 and 4 to file the written statement. 6. On perusal of the impugned order dated 2-5-2013 passed in TS No.3(H) 2001, it appears that the learned Trial Court had given the reasons for allowing the defendant No. 3 and 4 to file the written statement; reasons amongst others are: i) The personal file of TS No. 3(H) 2001 of the defendants/respondents No.3 and 4 had been misplaced by the learned counsel for the respondent No. 3 and 4. As a result, the written statement could not be filed within the time permissible under Order 8 Rule 1 of the CPC and due to the 3 lapses on the part of the learned counsel appearing for the defendant No. 3 and 4, there was considerable delay in filing the written statement. ii) The defendant No. 3 and 4 are not personally responsible for not filing the written statement within the prescribed period. The learned court below, after referring to a number of decisions of the Apex Court have come to the finding that the respondent No. 3 and 4 should not be victimized for the lapses of their counsel. The learned court below further held that misplacement of the file by the learned counsel shall be the exceptional ground for allowing to file the written statement after expiry of the period provided under Order 8 Rule 1 of the CPC. 7. The revisional jurisdiction of this court under section 115 and Article 227 of the Constitution of India is circumscribed and limited. Normally, this court exercises its revisional jurisdiction only when there is material infirmity in passing the impugned order or the impugned order was passed by the court below without any jurisdiction. This being the position, in the given case of the present revision petition, this court is not interfering with the impugned order dated 2-5-2013. 8. However, taking into consideration of the delay in disposal of TS No. 3(H) 2001 caused by the defendants No. 3 and 4, this court is of the considered view that an amount of Rs. 2000/- imposed by the Trial Court as cost to the respondent No. 3 and 4 is required to be enhanced. Therefore, in this given case, the cost of Rs. 2000/- mentioned in the impugned order dated 2-5-2013 is enhanced to Rs. 5000/-. Therefore, respondent No. 3 and 4, i.e. defendant No. 3 and 4 may file the written statement only after payment of Rs. 5000/- as cost to the petitioner. 4 9. In case the written statement had already been filed by the respondent/defendant No. 3 and 4, in pursuance of the impugned order dated 2- 5-2013, the respondent No. 3 and 4 has to pay an amount of Rs. 3000/-, i.e.(Rs. 5000 – Rs. 2000 = Rs. 3000/-) within 2(two) weeks from the date of receipt of this order by the learned Court below. 10. Considering the fact that the TS No.3 (H) 2001 had been pending for more than one decade, the learned court below is directed to dispose of TS No.3 (H) 2001 as expeditiously as possible. Further, it is also made clear that the Trial Court should not allow the applications for adjournment filed by the parties on flimsy grounds and if adjournment is to be allowed, heavy cost should be imposed as provided under order XVII of the CPC. 11. With the above observations and directions, this revision petition is