Disposed

Janardhan Saha and Anr. v. Krishna Gopal Karmakar

Gauhati HC4 Feb 2024CRP(IO)/44/2024

Case brief

AI extract

What is this about?

Revision under Article 227 against rejection of a delay-condonation petition for filing an additional written statement beyond 90 days. The High Court held Order VIII Rule 1 CPC is directory, found the trial court failed to apply judicial mind, set aside its order and directed acceptance of the additional written statement.

What did the court decide?

Impugned order dated 29.11.2023 set aside; trial court directed to accept the additional written statement and dispose of the suit in accordance with law.

Janardhan Saha and Anr. Vs Krishna Gopal… — Civil Procedure and Limitation | Gauhati HC (2024)

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Page No.# 1/2

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GAHC010018112024

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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)/44/2024

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JANARDHAN SAHA AND ANR

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S/O- LATE KALIDAS SAHA, R/O- BAGRIBARI ARAIANI, P.O. AND P.S. BAGRIBARI, DIST. KOKRAJHAR, ASSAM, PIN- 783349.

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2: RISHIKESH SAHA S/O- LATE KALIDAS SAHA R/O- BAGRIBARI ARAIANI P.O. AND P.S. BAGRIBARI DIST. KOKRAJHAR ASSAM PIN- 783349

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VERSUS

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KRISHNA GOPAL KARMAKAR

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S/O- LATE GOURCH. KARMAKAR, VILL.- BAGRIBARI ARIANI, P.O. AND P.S. BAGRIBARI, DIST. KOKRAJHAR, ASSAM, PIN- 783349.

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Advocate for the Petitioner : MD H R AHMED

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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ORDER

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05.02.2024

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Heard Md. H R Ahmed, learned counsel for the petitioners.

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This is an application filed under Article 227 of the Constitution of India challenging the

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Page No.# 2/2

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order dated 29.11.2023 passed by the learned Civil Judge (Jr. Division), Kokrajhar in T.S. No. 40/2021 (new)/ T.S. No. 06/2016 (old).

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In the case before the trial court, the plaintiff amended the plaint. Thereafter, the petitioners being the defendants filed additional written statement after more than 90 days. Therefore, the defendant filed a petition under the Limitation Act praying for condoning the delay. Trial court held that under the said circumstances, Section 5 of the Limitation Act is not applicable and on that ground, the prayer for condoning the delay was rejected.

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I have considered the submission of the learned counsel for the petitioners. Order VIII Rule 1 of the CPC provides that a written statement shall be filed within a maximum period of 90 days. Now, the law is settled that the aforesaid period of 90 days as provided under Order VIII Rule 1 of the CPC is not mandatory rather it is directory. Therefore, in that circumstances, the trial court has to exercise judicial mind in accepting or rejecting the same.

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The learned trial court has rightly held that Section 5 of the Limitation Act is not applicable in that circumstances. Even then, the trial court did not apply judicial mind when the additional written statement was accepted or rejected. Therefore, the impugned order dated 29.11.2023 passed by the learned Civil Judge (Jr. Division), Kokrajhar in T.S. No. 40/2021 (new)/ T.S. No. 06/2016 (old) is bad in law and stands set aside. The trial court is directed to accept the additional written statement filed by the petitioners/defendant nos. 1 and 2 and thereafter, the court shall proceed to dispose of the matter in accordance with law.

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With the above, the present civil revision petition is disposed of.

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JUDGE

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Comparing Assistant

Janardhan Saha and Anr. v. Krishna Gopal Karmakar

Case brief

What is this about?

What did the court decide?

Janardhan Saha and Anr. v. Krishna Gopal Karmakar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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