The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1681 of 2015 Banty @ Trilok Singh @ Trilochan Singh …. Petitioner Mr. S. Udgata, Advocate -Versus- Premdhani Toppo @ Premdhani Christian …. Opposite Party None Order No. CORAM: HON’BLE THE CHIEF JUSTICE
Decision
ORDER 19.09.2025 05. 1. Learned counsel appearing for the petitioner submits that he has already communicated to learned counsel appearing for opposite party namely Mr. R. N. Behera that this matter would be taken up today, but at the time of call, there is no representation on behalf of the opposite party. 2. The instant petition is directed against an order dated 30th November, 2015 passed by learned Civil Judge (Senior Division), Rourkela in Civil Suit No.130 of 2014 by which an application for acceptance of the written statement after condoning the delay is rejected. Page 1 of 6 3. The suit for declaration of title and recovery of possession is filed by the plaintiff-opposite party against the petitioner on the ground of trespass. It is undeniable that the summon of the suit was served upon the petitioner, but he could not file the written statement within the time stipulated under Order VIII Rule 1 of the Code of Civil Procedure (CPC). An application for acceptance of the written statement was taken out primarily on the ground that the petitioner was apprehended in connection with a criminal case initiated on the basis of the complaint/FIR lodged by the plaintiff- opposite party, and also undergone an operation for ligament fracture in his knee and because of the other allied ailments, he could not file the written statement within the statutory period provided therefor. The trial Court proceeded to dismiss the said application on the premise of the petitioner did not file any document in support of his medical illness and despite ample opportunity having given to the petitioner, he did not file the written statement. 4. Learned counsel appearing for the petitioner submits that there was sufficient averments made in the said application, which created hurdle in filing the written statement within the stipulated Page 2 of 6 period and, therefore, the trial court ought to have consider the case in a pragmatic manner and should have given an opportunity to defend the case. He further submits that the provision contained under Order VIII Rule 1 of CPC is not mandatory but directory in nature and, therefore, there is no fetter on the part of the Court to exercise the discretion in condoning the delay in filing the written statement. He further submits that the valuable right to defend should not be defeated by taking a pedantic view. 5. After the amendment having brought by virtue of CPC (Amendment) Act, 2002, the provision contained under Order VIII Rule 1 of CPC has undergone a sea change. Justice Malimath Committee, while recommending the amendment to be brought under the CPC, was conscious of the protraction of the litigations at the behest of the defendants and frequent granting of adjournments, which delayed the disposal of the cases. A timeline was incorporated under Order VIII Rule 1 of CPC so as to avoid any procrastination of the suit at the behest of an unscrupulous defendant and the risk of being suffered a decree ex parte. 6. Though the timeline provided under Order VIII Rule 1 of CPC is required to be borne in mind but the Court should also take Page 3 of 6 into consideration whether the said timeline is mandatory in nature or directory. The support can be lent from a judgment of the apex Court rendered in case of Kailash v. Nanhku and others, reported in (2005) 4 SCC 480 where the apex Court in unequivocal term held that the provision contained under Order VIII Rule 1 of CPC is directory in nature and not mandatory. The Court can in an exceptional case extend the time provided under Order VIII Rule 1 of CPC, if the circumstances so warrant. The ratio of Kailash (supra) is reiterated and restated in a subsequent decision rendered by the Supreme Court in Bharat Kalra v. Raj Kishan Chabra reported in 2022 (1) OLR 1099 in the following: “Leave granted. The challenge in the present appeal is to an order passed by the High Court on 12.08.2021 whereby delay of 193 days in filing of the written statement was not condoned. Admittedly, the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Act, 2015. Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as ‘Kailash V. Nankhu & Ors.’ reported in (2005) 4 SCC 480. In view of the aforesaid judgment, we find that the delay in filing of the written statement could very well be compensated with costs but denying the benefit of is unreasonable. the written statement filing of Page 4 of 6 Consequently, we allow the present appeal. The order passed by the High Court is set aside. The written statement already filed is taken on record. We do hope that the trial Court shall expedite the decision of the suit keeping in view the old age of the plaintiff. Pending application(s), if any, also stand disposed of.” 7. Even the said provision is held to be directory in nature, yet it has not dispensed with the responsibility of the Court in recording the satisfaction on the explanation offered for delay and should not exercise the discretion in a routine or a cavalier manner giving premium to an unscrupulous litigant to protract the litigation. The Court will look into the sufficiency of the cause and if the defendant is held to be prevented from the plausible reasons beyond its control, the Court should not shy away from exercising the discretion in extending the time for filing the written statement or accepting the written statement on record. 7.1. In the instant case, the petitioner was arrested and was put behind the bar on the FIR having lodged by the plaintiff-opposite party against him and also undergone a surgery because of the fracture having suffered by him and the immobility could be seen therefrom. Though the considerable time elapsed after the service Page 5 of 6 of summon, yet the explanation so offered cannot be said to be unsatisfactory or a gospel story and/or concocted for the purpose of seeking condonation of delay in filing the written statement beyond the statutory period of limitation provided therefor. This Court finds that the approach of the trial Court in refusing to accept the written statement is too onerous and pedantic and, therefore, warrants interference. 8. Accordingly, the impugned order dated 30th November, 2015 is hereby quashed and set aside. Consequently, the application filed by the petitioner to accept the written statement upon extending the time provided under Order VIII Rule 1 of CPC is hereby allowed. The trial Court is directed to take the written statement on record. 9. The present petition is accordingly disposed of. (Harish Tandon) Chief Justice Page 6 of 6 Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary, Orissa High Court Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2025 11:16:48 M. Panda