JUDGMENT
Indrajit Mahanty, J.
1. In the present writ application, the petitioner has sought to challenge the order dated 3.3.2004 (Annexure-3) passed by the learned Civil Judge (Jr. Divn.), Bhubaneswar in T.S. No. 918/ 415 of 2001/95. By the impugned order, the trial Court has been pleased to set aside the ex parte order dated 17.4.1996 and had directed acceptance of the written statement filed by the defendant On 23.9.2003.
2. Mr. Dash, learned Counsel for the petitioner seeks to challenge the said order by placing reliance upon the penultimate paragraph of the said order, where the trial Court has expressed its view that there is every likelihood of loss to the defendant which loss may be ultimately to the Union of India who is none else but our Nation. Mr. Dash submits that this is not the correct manner to exercise jurisdiction in legal proceeding. According to him, a defendant, whether the State or Union of India, is no more or no less than any other litigant and no separate standard of treatment ought to have been shown to them. Accordingly, he submits that the defendant who was set ex parte in the year 1996, came forward with an application for setting aside the said order after a period of eight years and the delay having not been sufficiently explained, the impugned order cannot stand the scrutiny of law. In this respect, Mr. Dash has placed reliance on a decision of the Supreme Court in the case of Arjun Singh v. Mohindra Kumar and Ors. . In the said Case, their Lordships while dealing with Order 9, Rule-7 CPC came to hold that in a case where Order 9, Rule-7 have no application, the matter would stand under Order 9, Rule 6 making Rule-13 the only provision in Order 9 applicable in the circumstances of the case.
3. Mr. Mishra, learned Counsel for the Railways, on the other hand, submits that in the present case, the documents sought to be relied upon by the Railways for filing the written statement, relate to the beginning of 19th century and were required to be collected from different offices of the Government of India for which delay was caused and by accepting the written statement no impediment has been caused to the plaintiff-petitioner. In this regard, Mr. Mishra has placed reliance upon a judgment of the Apex Court in the case of Kailash v. Nanhku and Ors. 2005 (I) OLR (SC) 718. In that case, their Lordships of the Supreme Court while dealing with Order 8, Rule 1 CPC held that the purpose of providing the time schedule for filing the written statement is to expedite and not to scuttle the hearing. Their Lordships also held that there is no embargo on the power of the Court to extend the time as the same is “directory”. But a prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended.
4. Mr. Dash, learned Counsel for the petitioner has further placed reliance upon a decision of the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India , in which their Lordships held as follows:
The Court, however, made it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases.
In the said case, their Lordships also held as follows:
The effect would be that under Rule 10 of Order 8, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided Order 8, Rule 1. There is no restriction in Order 8, Rule 10 that after expiry of 90 days, further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit. Clearly, therefore the provision of Order 8, Rule 1 providing for upper limit of 90 days to file written statement is directory.
5. In view of the submissions made by the learned Counsel for the parties, it is well settled that the Court has power to extend the time for filing written statement; but the same is not to be frequently or liberally exercised. In the present case, the suit was filed in the year 1995 and was re-renumbered in the year 2001. The learned Civil Judge has exercised his power only after he was convinced that grave injustice would be caused if the ex parte Rai v. Ram Chander Rai and Ors. . In paragraph-38(7) of the Judgment, their Lordships held as follows:
38(7) : The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/ or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
6. Therefore, in the present case, I am of the view that the impugned order does not suffer from any latches or error of law and I am in complete agreement with the view expressed by the learned Civil Judge.
Accordingly, the writ application is dismissed. The trial Court is directed to take up the suit expeditiously and dispose of the same at an early date.
