The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 18:33:37 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.640 of 2025 (In the matter of an application under Article 227 of the Constitution of India) General Manager, East Coast Railway and Another …. Petitioners -versus- Prasanta Kumar Mishra and Others …. Advocate(s) appeared in this case:- Opposite Parties For Petitioners
Legal Reasoning
: Mr. S.K.Samantaray, CGC For Opposite Parties : Ms. S.K. Rout, ASC Ms. D. Mahapatra, Advocate (O.P.1, 3 to 11, 14 to 23, 25 & 26) Mr. S.K. Sahu, Advocate (O.P. No.31) CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 29th November 2025 B.P. Routray, J. 1. Heard Mr. S.K. Samantaray, learned Central Government Counsel for the petitioners, Ms. D. Mohapatra, learned counsel for opposite parties 1, 3 to 11, 14 to 23, 25 and 26, Mr. S.K. Sahu, learned counsel for CMP No.640 of 2025 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 18:33:37 Puri Municipal Corporation (O.P. No.31) and Mr. S.K. Rout, learned ASC for State – Opposite Party. 2. Present CMP is directed against order dated 7th December, 2024 of learned Senior Civil Judge, Puri passed in CS No.75 of 2020 wherein the prayer of defendants 3 and 4 to accept their written statement has been rejected being time barred. 3. Present opposite parties 1, 3 to 11, 14 to 23, 25 and 26 being the plaintiffs filed the suit praying for declaration of right title interest in respect of the suit land belonging to defendants 3 and 4 (Railways) by adverse possession. Though defendants 3 and 4 have entered their appearance on 5th March, 2020 in CS No.75 of 2020, but did not file their written statement in time. Subsequently on 25th March, 2021 defendants 3 and 4 were debarred from filing the written statement. Thereafter on 18th June, 2024 a petition was filed by them along with the written statement praying to accept the same. It is explained that since new panel of lawyers was going to be formed for Railways and the earlier Lawyer representing the Railways though continued to hold the brief but did not inform about the order of the trial court debarring them to file their written statement. So there was a communication gap and as such, the written statement could not be filed in time. CMP No.640 of 2025 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 18:33:37 4. Admittedly, the land belonged to the Railways, i.e. defendants 3 and 4, and they are the main contesting parties in the suit. It is well settled that a defendant would generally be permitted to lead his defence and filing of the written statement being a substantial right on the part of defendant he should not be usually prevented from filing the same. 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.” 5. 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 CMP No.640 of 2025 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 18:33:37 hold that the provisions under Order 8 Rule 1 are mandatory in nature. 14. 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 CMP No.640 of 2025 Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 18:33:37 mistress. In the present context, the strict interpretation would defeat justice.” 15. 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 extraordinary situations in the ends of justice.” leave the court helpless to meet 6. Considering the settled principles of law as propounded above, and keeping in view the fact that defendants 3 and 4 (present petitioners) are the contesting parties in the suit, they are permitted to file their written statement subject to payment of cost of Rs.5000/- to be deposited before District Legal Services Authority, Puri, within a period of 30 days from today. Upon deposit of such cost within the time stipulated, the written statement filed on behalf of defendants 3 and 4 shall be accepted on record and the suit will be relegated to that stage.
Decision
7. With above observation and direction the CMP is disposed of. (B.P. Routray) Judge M.K.Panda, P.A. CMP No.640 of 2025 Page 5 of 5