Radhu Napit Radha Napit v. Tarapado Napit .

1. Heard the learned counsel for the parties.

2. The challenge in this writ application is to the order dated 17.5.2005 (Arinexure-1) passed in Title (Partition) Suit No. 16 of 2004 passed by the Sub-Judge-1st, Bokaro, whereby the petitioner/defendant No. 1, had been debarred from filing bis written statement. Challenge is also to the order dated 19.6.2007 (Annexure-3) passed by the said court in the aforesaid Title (Partition) Suit, whereby the petition dated 7.6.2005 filed by the petitioner/defendant No. 1, for accepting his written statement and for recalling the earlier order dated 17.5.2005, was rejected only on the ground that it was time barred under the provisions of Order 8 Rule 1 of the amended G.P.C

3. Facts of the case stated briefly, are that the Title (Partition) Suit No. 16 of 2004 was filed by the Respondent/. Plaintiff. The present petitioner, who has been impleaded as defendant No. 1 in the suit.

4. Upon receipt of notice, the petitioner/defendant No. 1, had appeared in the Title Suit dated 7.1.2005, but he did not choose to file his written statement within the period stipulated under the provisions of Order 8 Rule 1 CP.C On his failure to file his written statement within the period of limitation, as ehvisaged un-der the provisions of Order 8 Rule 1 C.P.C the trial court had passed the impugned order dated 17.5.2005 debarring the petitioner/defendant No. 1 from filing his written statement.

5. Notwithstanding such order, the petitioner filed his written statement in the Suit on 17.6.2005 alongwith a separate application, praying for acceptance of his written statement after recalling the earlier order dated 17.5.2005 By the impugned order dated 19.6.2007, the petitioner's prayer for acceptance of his written statement and for recalling the earlier order dated 17.5.2005, was rejected.

6. Assailing the impugned order, learned counsel for the petitioner submits that the impugned order has been passed by the court below by a misconception of the import of the provisions of the Order 8 Rule 1 C.P.C and by construing the same, as imposing a mandated period of limitation leaving no discretion on the part of the court to allow any extension of period.

7. Learned counsel adds that learned court below has failed to appreciate the genuine reasons stated by the petitioner for his inability to file his written statement within the period stipulated in the procedural law. The explanation offered by him was that his lawyer was entrusted with all relevant documents for drafting the written statement, but the essential documents was misplaced by the lawyer.

8. Learned counsel for the Respond ent, on the other hand, would submit that by the order dated 17.5.2005, the court below had assigned adequate reasons for refusing the prayer of the petitioner and even otherwise, the petitioner has not been able to satisfy before the court below, the reasons for the delay in filing the written statement.

9. Upon hearing the rival submis sions of the learned counsel for the par ties and on perusal of the impugned order of the court below, it appears that admit tedly, the petitioner had not filed his writ ten statement within the period stipulated under Order 8 Rule 1 C.P.C Rather, there appears a delay of more than 60 days in filing the written statement. In absence of the written statement being filed by the petitioner/defendant, the trial court had every competence to pass the order, de barring the petitioner from filing the written statement.

10. However, the provisions of Order 8 Rule 1 C.P.C do lay down a procedure and do include a specific time frame within which the defendants are to file their writ ten statements, from the date of their appearance in the Suit. This itself would not mean that the trial court has been left with no discretion to exercise and to allow or to accept the delayed written statement, if sufficient cause is shown by the defendants for the delay and if the interest of justice would demand the acceptance of the written statement.

11. The delay in filing the written statement can, therefore, be condoned by the trial court in appropriate cases and the delayed written statement can be accepted, albeit by imposing reasonable cause (sic—cost?) upon the defendant, if the delay is satisfactorily explained.

12. In the instant case as it appears, the petitioner has wanted to explain the delay in filing the written statement, on the ground that the relevant documents which are supposed to be filed, was en trusted to his lawyer who had misplaced the same. Such explanation does not ap pear to have been supported by affidavit of the lawyer concerned or even on oath by the petitioner. In absence of any support to his statement and that too, not made on affidavit, the petitioner cannot possibly expect the trial court to accept his contentions and condone the delay.

13. In the light of the above facts and circumstances and having examined the impugned orders, I do not find any error or impropriety in the impugned or ders. As such, there is no merit in this writ application and hence, the same is hereby dismissed.