Allowed

Bhanupada Mahanta v. Ikbal Hussain Choudhury and Anr.

Gauhati HC24 Nov 2021CRP(IO)/204/2019

Case brief

AI extract

What is this about?

Writ petition under Article 226 challenging rejection of a late-filed written statement. The High Court held that denial of the right to defend affected substantive rights and ordered acceptance of the document filed 12 days late.

What did the court decide?

Impugned order dated 30.05.2019 set aside; written statement filed on 28.02.2019 directed to be taken on record by the trial court.

Bhanupada Mahanta Vs Ikbal Hussain Choudhury and Anr. — Property and Title | Gauhati HC (2021)

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Page No.# 1/4

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GAHC010145342019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(IO)/204/2019

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BHANUPADA MAHANTA S/O- LATE BIPIN BIHARI MAHANTA R/O- JHALUPARA PO AND PS- SILCHAR DIST- CACHAR, ASSAM PIN- 788001

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VERSUS

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IKBAL HUSSAIN CHOUDHURY AND ANR S/O- MD. AZIR UDDIN CHOUDHURY VILL- RANGAUTI PART-I PO- RANGAUTI, PS AND DIST- HAILAKANDI, ASSAM PIN- 788155

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2:MD. HILLAL UDDIN CHOUDHURY S/O- MD. ISAB UDDIN CHOUDHURY HAILAKANDI TOWN WARD NO.1 PO- RAGAUTI PS AND DIST- HAILAKANDI ASSAM PIN- 78815

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Advocate for the Petitioner : MR. B CHAKRAVARTY

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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Date : 24-11-2021

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Heard Mr. B Chakravarty, learned counsel for the petitioner.

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Page No.# 2/4

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This application under Article 227 of the Constitution of India challenging the order dated 30.05.2019 passed in Title Suit No.18/2012, whereby the written statement filed by the petitioner/defendant in the suit was not accepted by the trial Court on the ground that the period of 90 days had expired as provided under the provisions of Order VIII Rule 1 CPC.

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Mr. Chakravarty, learned counsel for the petitioner has placed before this Court the entire order sheet of the Title Suit No.18/2012. From a perusal of the order sheet for the period from 16.03.2012 to 11.01.2016, it reveals that the service of summons upon the defendant i.e. the petitioner herein was not affected. Thereafter on 03.02.2016 as the plaintiff was absent, the suit was dismissed for default by the trial Court.

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On 22.05.2018, the suit was restored and thereby the defendant was directed to appear in the said suit and file written statement within the statutory period of limitation starting from 22.05.2018. The petitioner thereafter challenged the said order dated 22.05.2018 before this Court in CRP No.123/2018 and this Court vide an order dated 27.08.2018 stayed further proceedings of Title Suit No.18/2012.

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Subsequent thereto, vide an order dated 22.02.2019 this Court rejected the said application filed by the petitioner thereby confirming the order dated 22.05.2018. While the stay continued in respect to the suit, the trial Court passed an order on 07.12.2018 whereby 28.02.2019 was the date fixed for passing of the necessary orders in view of the pendency of the proceedings i.e., CRP 123/2018 before this Court.

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On 28.02.2019 the plaintiff remained absent, however, the defendant filed his written statement along with the petition seeking leave for filing documents at the time of hearing of the suit.

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The Court below vide the said order dated 28.02.2019 expressed its intention to hear the plaintiff side before accepting the written statement

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Page No.# 3/4

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and accordingly fixed the matter on 26.03.2019 for submission of the order of this Court and hearing the plaintiff side on the question of acceptance of the written statement. Thereafter the order(s) dated 26.03.2019, 20.04.2019 & 04.05.2019 reflects that the plaintiff had objection regarding acceptance of the written statement filed beyond the prescribed period.

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The Court below after hearing both the parties thereafter on 30.05.2019 returned the written statement as it was filed beyond the prescribed period as it had expired on 20.08.2018. Vide the impugned order further the Court below though permitted the defendant/petitioner herein to take part in on subsequent proceedings but was denied to adduce any evidence and was only permitted to cross-examine the plaintiff witnesses on legal aspects.

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I have heard the learned counsel for the petitioner. None appears on behalf of the respondent in spite of service of notice.

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From the records of the case, it could be seen that the period prescribed for filing of the written statement started as per the order of the trial Court i.e., with effect from 22.05.2018 and on 20.08.2018 the period of 90 days was over. Thereafter on 27.08.2018 this Court had stayed the further proceedings of the suit and the said order continued till disposal on 22.09.2019 and the Court below had fixed the case on 28.02.2019 for necessary orders. On that date, the petitioner had filed the written statement. Taking into consideration the period in question, the delay in filing of the written statement was 12 days. It is no longer res-integra that the provisions of Order VIII Rule 1 are not mandatory and further taking into consideration that the rights of the defendants/petitioner to defend a lis are substantive in nature which would be affected in denying the right to defend the suit, and there being no serious lapses, it would be in the interest of justice that the written statement filed by the defendant in the suit be

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accepted.

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Accordingly, the impugned order dated 30.05.2019 is interfered with and the written statement filed on 28.02.2019 by the defendant/petitioner herein would be taken on record by the Court below.

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With the above observations, the instant petition stands disposed of. No costs.

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The parties are directed on appear before the Court below on 15.12.2021. The order sheet produced by the learned counsel for the petitioner is kept on record. .

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JUDGE

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Comparing Assistant

Bhanupada Mahanta v. Ikbal Hussain Choudhury and Anr.

Case brief

What is this about?

What did the court decide?

Bhanupada Mahanta v. Ikbal Hussain Choudhury and Anr.

Case brief

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