Ali v. Asha Construction & Ors.

The grievance of the petitioners/defendants in the said case is that the learned Trial Judge without applying his mind has rejected the application for acceptance of written statement.

It further contended in order dated

26.03.2019 the learned Trial Judge refused to 2 accept the written statement filed by defendant No.

Mr. Sen, learned counsel for the plaintiffs/opposite parties submits that the petitioners/defendants are required to take necessary steps before the learned Trial Court in terms of order dated 10.07.2019 and prior to taking necessary steps this application cannot be considered.

Upon hearing the learned counsels and considering the materials on record it appears that pursuant to the institution of the suit by the plaintiffs/opposite parties the case on 30.06.2015 was directed to appear for ex parte hearing with regard to defendant No.2/petitioner No.2. However with regard to defendant No.1/petitioner No.1 date was fixed for filing written statement being 02.09.2015. On 02.09.2015 the learned Trial Court extended the time to file written statement till 21.01.2016. On

21.01.2016 the defendant No. 1 filed written statement along with the counter-claim. Thereafter by order dated 26.03.2019 the learned Trial Judge was pleased to keep the written statement filed by the defendant No.1 in abeyance and granted the said defendant liberty to take necessary steps in this regard. The observation made by the learned Trial Judge is as follows: 3 “It appears that the defendant has appeared on

30.06.2015 and he has filed his W/S along with counter-claim on 21.01.2016. the defendant has also filed court fees of Rs.50,000/- in respect of the counter-claim. It appears to this Court that the W.S of the defendant No. 1 has not been accepted till date. It appears from the said W.S. with counter- claim that the same has been filed by the defendant No.1 himself for his self and also as constituted Attorney for the defendant No.2 but the suit is proceeding ex-parte against defendant No.2 since

30.06.2015. No step has been taken by the defendant for setting aside the said ex-parte order excepting one petition dated 16.01.2019 acceptance of the said W/S with counter-claim for its delayed filing. Case record also suggests that in respect of the counter-claim, the defendant has filed court fees of Rs.50,000/- in a claim for specific performance of contract”.

Upon perusing the record it also appears that the defendant No. 1 at the time of filing written statement has incorporated the written statement is also filed on behalf of the defendant No. 2. As the case was running ex-parte with regard to defendant No. 2, the defendant No.2 cannot without the leave the court file said written statement and also before getting the order recalled from the ex parte board. Thus, on 10.07.2019 learned Trial Judge was pleased to observe that the suit is on ex parte board against defendant No. 2. Therefore, the defendant No. 2 cannot join with 4 defendant No. 1 in filing written statement with counter-claim without setting aside the ex parte order.

In the facts and circumstances, this Court is of the view that as the defendant No. 1 filed the written statement within time the said defendant cannot be penalized due to some technical defects. However with regard to defendant No. 2 as the defendant No. 2 did not file the written statement within the period fixed by the learned Trial Court and the case was running ex parte board the said defendant cannot file the written statement without getting the order fixing the case on ex parte board being recalled.

Thus, in the interest of justice this application under Article 227 stands disposed.

Defendant No.1/petitioner No.1 as well as defendant No.2/petitioner No.2 is granted liberty to necessary application for removing the defects before the learned Trial Court. Such petition shall be filed on the next date fixed before the learned Trial Court. In the event the necessary applications are filed by the defendant No. 1 and defendant No. 2 the petitioners herein the learned Trial Court shall consider and decide the same in accordance with law within four weeks from the next date fixed without being influenced by this order. 5

It is, however, made clear that this Court has not gone into the merits of the suit and all points are kept open to be agitated by the parties.

It is also made clear that in the event the said application is not made on the next date fixed the learned Trial Court will have discretion to give some extension to file the same but that cannot be more than seven days from next date fixed failing which the defendants/petitioners will have no further opportunity to make application. (Biswaroop Chowdhury, J.)