The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 850 OF 2024 The Committee, Sri Jagannath Temple, Puri …. Petitioner Mr. Subrat Satpathy, Advocate Shankarlal Patwari and others …. Opp. Parties -versus- Mr. Ajit Kumar Tripathy, Advocate (For Opp. Party No.1) Mr. Ramakanta Sarangi, Advocate (For Opp. Party No.3) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 23.09.2024 2. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this CMP seeks to assail the order dated 20th April, 2024 (Annexure-7) passed in Title Suit No.442 of 1996, whereby learned 2nd Additional Civil Judge (Senior
Legal Reasoning
Division), Puri rejected an application by Defendant No.2- Petitioner under Order VIII Rule 9 CPC for acceptance of the written statement filed along with an application to condone the delay in filing the written statement.
Legal Reasoning
3. Mr. Satpathy, learned counsel for the Petitioner- Defendant No.2 submits that the suit has been filed by the Plaintiff-Opposite Party No.1 seeking occupancy right over the suit property. Initially, Defendant No.2 was not impleaded as a party to the suit. Subsequently, by filing an application under Order I Rule 10 CPC, the Petitioner-Defendant No.2 was impleaded as a party to the suit. In the year, 2007, written Page 1 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 statement to be filed by Sri Jagannath Temple Administration, Puri-Defendant No.2 was approved and it was handed over to learned counsel for Defendant No.2 to be filed in Court. But, there is nothing on record to show that when the written statement on behalf of Defendant No.2 was filed. He refers to the order dated 14th September, 2007 and subsequent orders dated 22nd September, 2007, 6th October, 2007 and 12th October, 2007 and submits that by then written statement on behalf of Defendant No.2 was not filed. But, referring to order dated 26th March, 2014, Mr. Satpathy, learned counsel submits that by then, written statement by Defendant No.2 had already been filed, which is apparent from the said order. It is recorded in the said order that an application under Order VI Rule 17 CPC was filed by the Plaintiff on the ground that Defendant No.2 after entering appearance pursuant to an order passed in Order I Rule 10 CPC filed written statement disclosing that the suit land has been settled in his favour. Thus, it is apparent from the said order that by then, the written statement had already been filed by Defendant No.2. But, subsequently, the suit was transferred to the Court of 2nd Additional Civil Judge (Senior Division), Puri by order of learned District Judge, Puri. The said written statement might have been lost in transit. 3.1 Defendant No.2 all throughout remained under an impression that the written statement was available in the case record. Pursuant to the order of amendment, the Plaintiff also filed the consolidated plaint and Defendant No.2 also prayed for filing of additional written statement in response to the Page 2 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 consolidated plaint. Trial of the suit commenced from 7th August, 2023. The Petitioner-Defendant No.2 participated in the trial of the suit with such impression that he had already filed the written statement. When P.W.4 was being cross-examined, it came to the light that the written statement filed by the Defendant No.2 was not available in the case record. Such an occasion arose, as the Defendant No.2 was not allowed to cross- examine P.W.4 on the plea that it had not filed the written statement. Accordingly, Defendant No.2 filed a petition under Order VIII Rule 9 CPC along with a fresh written statement replicating the earlier one. The only difference was the description of the verificant and the date of filing mentioned in the written statement. As the written statement was filed belatedly, an application for condonation of delay was also filed along with the petition under Order VIII Rule 9 CPC. Learned trial Court without considering the above, recorded that the Defendant No.2 has not explained the inordinate delay of twenty two years in filing the written statement and rejected the same. Hence, the Defendant No.2-Petitioner being aggrieved has filed this CMP. 4. It is his submission that the suit land has already been recorded in the name of Sri Jagannath Temple, Puri and the same is necessary to be taken cognizance of during adjudication of the suit seeking relief of occupancy right. Since it was a bona fide mistake on the part of Defendant No.2 to remain under impression that its written statement is available on record, delay in filing a fresh written statement should have been condoned Page 3 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 and the written statement should have been accepted. The Defendant No.2 is a perpetual minor and its interest should be protected as it is the duty of learned trial Court to protect its interest. Hence, he prays for setting aside the impugned order under Annexure-7. 5. Mr. Tripathy, learned counsel for the Plaintiff-Opposite Party No.1 vehemently objects to the submission made by Mr. Satpathy, learned counsel for the Defendant No.2-Petitioner. It is his submission that no written statement whatsoever was filed prior to 2024. It was filed along with the petition under Order VIII Rule 9 CPC. There is nothing on record to show that the Defendant No.2 had in fact filed the written statement. Referring to Annexure-2, i.e., copy of the written statement stated to have been filed earlier, Mr. Tripathy, learned counsel for the Plaintiff- Opposite Party No.1 submits that the verification discloses that the written statement by Defendant No.2 was filed in November, 2007. But, the order dated 26th March, 2014 discloses something different. It is his submission that there might be an inadvertent error in recording of the order dated 26th March, 2014 by misconstruing the petition under Order I Rule 10 CPC to be the written statement filed by Defendant No.2. In fact no written statement was filed till 2014, as reflected in the order dated 26th March, 2014. 6. It is further submitted that neither the petition under Order VIII Rule 9 CPC nor the petition for condonation of delay was supported by any affidavit. Thus, no judicial notice can be taken of such petition for consideration. He further submits that Page 4 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 in the meantime, evidence from the side of the Plaintiff has already been closed and it is posted for evidence on behalf of the Defendants. The suit is of the year, 1996 and the petition under Order VIII Rule 9 CPC was filed more than twenty two years after appearance of the Defendant No.2 in the suit. Thus, learned trial Court has committed no error in rejecting such petition. Mr. Tripathy, learned counsel for the Plaintiff-Opposite Party No.1 also relied upon the decision in the case of Sri Prasanna Parvathamba –v- Sri M.S. Radhakrishna Dixit, reported in AIR 2003 KARNATAKA 345 and submits that no written statement can be accepted after the statutory period. He, therefore, prays for dismissal of the CMP. 7. Mr. Sarangi, learned counsel for Defendant No.3- Opposite Party No.3 reiterating the submission of Mr. Tripathy, learned counsel for the Plaintiff-Opposite Party No.1 submits that the statutory period for filing a written statement is 30days + 90 days. Thus, no written statement can be accepted beyond the statutory period. No explanation much-less any acceptable explanation has been offered by Defendant No.2-Petitioner to accept the written statement more than twenty two years after its appearance in the suit. He, therefore, submits that learned trial Court has committed no error in rejecting the petition for acceptance of written statement. 8. Heard learned counsel for the parties and perused the materials on record. 9. It appears that the application for acceptance of written statement was filed on 21st March, 2024. The same was not Page 5 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 supported by any verification or affidavit. The petition for condonation of delay is also not supported by any affidavit. It is, however, stated in the petition for acceptance of written statement that the written statement of Defendant No.2 was filed earlier with the signature of the then Administrator, Sri Jagannath Temple, Puri. Office copy of the said written statement is available with the Temple Office, which has been annexed to the CMP as Annexure-2. Objection was filed only by the Plaintiff to such application. It appears that Defendant No.3-Opposite Party No.3 had not filed any objection to the petition for acceptance of the written statement. 10. While adjudicating the matter, learned trial Court failed to take into consideration the order dated 26th March, 2014, which discloses that in view of the filing of the written statement by Defendant No.2 stating new facts, an amendment of the plaint was necessary. As such, an application under Order VI Rule 17 CPC was filed for amendment of the plaint. Law is well settled that recording of the Court is presumed to be correct unless otherwise disproved. There is nothing on record to show that after 2014, Defendant No.2 filed any application seeking time to file its written statement. 11. Mr. Tripathy, learned counsel for the Plaintiff-Opposite Party No.1 referring to the petition at Annexure-A/1 series and B/1 series submits that in the year, 2014, the Petitioner had prayed for filing of the written statement. Those petitions disclose that the written statement was sought to be filed to the consolidated plaint. It further appears that trial of the suit Page 6 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 commenced in the year, 2023, i.e., on 7th August, 2023. Thus, till that date trial of the suit had not commenced. The statutory period for filing written statement provided under Order VIII Rule 1 CPC is mandatory in a commercial suit. In other suits, it is directory in nature, as held by the Hon’ble Apex Court. There is also no dispute to the same. Thus there was no legal bar to accept the written statement after the statutory period in exceptional cases. If the submission of Mr. Satpathy, learned counsel for the Defendant No.2 vis-a-vis recording in order dated 26th March, 2014 is held to be correct, then it is obvious for Defendant No.2 to remain under impression that its written statement is available on case record and with that impression, it continued to cross-examine three witnesses of the Plaintiff also. There was no objection to the same till P.W.4 was cross- examined. Thus, it appears that the Plaintiff was also under impression that the written statement of Defendant No.2 is available in the case record. In that background, it may be concluded that the Petitioner-Defendant No.2 has made out an exceptional cases for acceptance of its written statement. 12. But the fact remains that the entire case record is not available before this Court, which is required to be scrutinized to test the veracity of the case of the Petitioner-Defendant No.2. Learned trial Court has the scope to verify the case record and come to a conclusion with regard to correctness of the recording in order dated 26th March, 2014 as well as the submission made by Mr. Satpathy, learned counsel for Defendant No.2-Petitioner. It is more so because there is nothing on record to show that on Page 7 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2024 12:52:13 which date the written statement was filed by Defendant No.2. Commencement of trial should not be a bar to accept the written statement of Defendant No.2, if the averment made in the petition under Order VIII Rule 9 CPC appears to be true and correct. Learned trial Court should have made an endeavour to verify the same from the case record, while adjudicating the matter. 13. In that view of the matter, the impugned order under Annexure-7 is not sustainable and is accordingly set aside. The matter is remitted to learned trial Court to adjudicate the petition under Order VIII Rule 9 CPC filed along with an application for condonation of delay along with the petition for condonation of delay afresh giving opportunity of hearing to the parties concerned. While adjudicating the matter, learned trial Court may give opportunity to the Petitioner-Defendant No.2 to file a fresh application for condonation of delay supported by an affidavit and may take into consideration that the written statement of the Petitioner, which is relevant to be taken into consideration for effective adjudication of the suit. 14. With the aforesaid observation and direction, the CMP is
Decision
disposed of. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 8 of 8