ORDER
S.N. Hussain, J.
1. Heard the learned counsel for the parties.
2. The petitioner is Defendant No. 2 in Title Suit No. 79/2000 and is aggrieved by order dated 19.8.2003 by which the learned Second Munsif, Gaya, has rejected his petition for recall of the earlier order dated 23.1.2003 and 21.5.2003 by which he was debarred from filing his written statement and the case was fixed for ex parte hearing.
3. The aforesaid suit was filed by Opposite Party Nos. 1 to 8 for declaration of title etc. in which Defendant No. 2 (petitioner) appeared on 7.9.2002 and on his request time was granted by the learned Court below for filing his written statement by 5.10.2002. It transpires from record that Defendant No. 2 (Petitioner) did not file his written statement within the said period and by order dated 23.1.2003 the learned Court below posted the case for hearing under Order VIII, Rule 10, CPC and subsequently by order dated 21.5.2003 the case was fixed for ex parte hearing.
4. The contention of the learned counsel for the petitioner is that the petitioner (Defendant No. 2) although had appeared though his counsel on 7.9.2002, but the said counsel deceived him and realised amounts in the name of Pairvi and told him that the petitioner was not required to come to Court for filing the written statement as the entire file alongwith the documents was with him. But inspite of that no written statement was filed on his behalf nor any information was ever sent to him. The learned counsel for the petitioner further submits that when he learnt about the aforesaid order dated 21.5.2003 he came to Court on 31.5.2003 but he was informed that it was a clearance any, hence he again came to the Court alongwith his written statement and Vakalatnama of another counsel on 2.6.2003, but he was informed that the case has been posted for 24.6.2003 and only on that date the written statement could be accepted. Hence, he duly filed his written statement alongwith the Vakalatnama on 24.6.2003 and on the same day he filed a petition for recall of the earlier orders dated 23.1.2003 and 21.5.2003 and prayed that his written statement be accepted. In the aforesaid circumstances, the learned counsel for the petitioner submits that the learned Court below was not justified in assuming that no good and sufficient reason was assigned by the Defendant-petitioner and rejected the petition by the impugned order.
5. On the other hand, the learned counsel for the plaintiff- opposite parties vehemently opposed the contention of the learned counsel for the petitioner and submitted that after 7.9.2002 twice time was enhanced by the learned Court below on the request of the defendant-petitioner to file his written statement, but even then the written statement was not filed. He further contends that the grounds shown for the delay in filing the written statement by the petitioner was not at all good or sufficient as he had full knowledge of all the stages of the case, but he intentionally did not file the written statement earlier in spite of the opportunities given to him and merely he wanted to delay the hearing of the case. The learned counsel for the opposite parties relied upon a decision in the case of Smt. Savitha Gupta v. Nagaratha and Ors., reported in AIR 2003 Kant 426, in which it has been held -that time barred written statement cannot be legally accepted by the Court in view of Order VIII, Rule 1, CPC and hence he averred that the learned Court below was quite justified in rejecting the petition of the defendant-petitioner.
6. After considering the arguments of the learned counsel of the parties and after perusing the materials on record, it is apparent that the hearing of the suit has not yet been started and the suit is at its initial stage. It further transpires that the instant matter has arisen due to non-compliance of the Court’s order which had granted specific time to the defendant-petitioner for filing his written statement and hence the matter is covered by the provision of under of Order VIII, Rule 10, CPC and not by the provision of Order VIII, Rule 1, CPC and not by the provision of Order VIII, Rule 1, CPC and hence in my view the decision relied upon by the opposite parties in the case of Smt. Savitha Gupta (supra) is not applicable to the instant case and the learned Court below had full jurisdiction to extend the time granted by the Court itself.
7. So far the rejection of the petition of the defendant-petitioner on the ground of insufficiency of reasons is concerned, from the statements made in Paragraphs 2 to 5 of the petition dated 24.6.2003 (Annexure-1) filed by the defendant- petitioner in the Court below, it is quite apparent that sufficient reasons were given and furthermore any party to the suit should not be allowed to be put to any harm due to deception or fraud played upon him by his counsel specially when the defendant had approached the Court at the very early stage of the suit.
8. In the aforesaid circumstances, it is quite apparent that the learned Court below has not exercised its jurisdiction specifically fixed in it by law and accordingly the impugned order is set aside and this civil revision is allowed, subject to payment of cost of Rs. 1000/- (one thousand) by Defendant No. 2- petitioner to the plaintiffs in the Court below within one month from today.
