IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.697 of 2007
YUGESHWAR THAKUR & ORS
Versus
GHURAN THAKUR & ORS
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2 15.7.2008 Heard Counsel for the petitioner.
The petitioner seems to be aggrieved by an order dated
13.1.2007 whereby and whereunder the Court below has
rejected the application filed by the petitioner for acceptance
of their written statement on the ground that it was filed
beyond the period of ninety days of their service of summons
and in fact after the Court had already debarred them from
filing written statement by an order dated 7.11.2006.
Counsel for the petitioner with reference to the
pleadings in civil revision application as also stated in the
impugned order submits that in a partition suit where the
entire right of the petitioners were to be adjudicated, their
being debarred from filing of the written statement, would
virtually rob them off of their valid right to contest the case
on merit. In this regard, he also submits that as a matter of
fact summons were not served validly on the petitioners and
therefore when this question was raised before the Court
below it ought to have recorded the findings in this regard.
He further submits that the spirit of the judgment of the
Apex Court in the case of Kailash Vs. Nanhaku reported in
AIR 2005 SC 2441 while laying down the law with regard to
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the provision of order 8 rule 1 is that the same is directory
and therefore the reasons for such delay have to be looked
into even while considering the question of debarring the
defendants from filing of the written statement.
On the other hand, Counsel appearing on behalf of the
opposite parties has stated that true it is that the provision
of Order VIII Rule 1 has been held to be directory but then
that does not mean that in each and every case the
defendants can be given a liberty of delaying the disposal of
the suit by choosing not to file their written statement for an
unexplained period. He further submits that the Court below
has committed no error in passing the impugned order by
applying the ratio of the judgment of the Apex Court in the
case of Salem Bar Association reported in AIR 2005 SC 3353
while passing the impugned order.
In the opinion of this Court, the impugned order is not
sustainable as the facts of this case for causing delay in filing
written statement by the petitioners have not been carefully
considered and analyzed by the Court which appear to have
been missed altogether in its over enthusiasm to rely on the
judgment of Apex Court in Salem Bar Association (supra). In
fact the Court below was under obligation to first look into
the reasons for not filing of the written statement as
disclosed by the petitioners in their application. Such reason
for not filing of such written statement by the petitioners
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being that notices/summons were not allegedly served on
them ought to have been at least considered with greater
detail by the Court below. This having been not done, this
Court taking into consideration the ends of justice as also
the right of the parties in the partition suit, would set aside
the impugned order and direct the Court below to accept the
written statement already filed by the petitioners subject to
the payment of cost of Rs. 7,500/- to the plaintiff opposite
parties no.1 within a period of three months of the date of
receipt/production of a copy of this order.
With the aforementioned observations/directions, this
civil revision application is allowed.
Rsh (Mihir Kumar Jha, J.)