The Assam State Transport Corporation (Astc) and 2 Ors. Vs Ghosh Brothers Motors Private Limited

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Page No.# 1/5

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GAHC010246182023

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2026:GAU-AS:3576

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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)/363/2023

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THE ASSAM STATE TRANSPORT CORPORATION (ASTC) AND 2 ORS HAVING ITS OFFICE AT PALTAN BAZAR, PARIBAHAN BHAWAN, GUWAHATI-781008, DIST-KAMRUP (METRO), ASSAM. REPRESENTED BY ITS MANAGING DIRECTOR

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2: THE MANAGING DIRECTOR

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THE ASSAM STATE TRANSPORT CORPORATION (ASTC) HAVING ITS OFFICE AT PALTAN BAZAR PARIBAHAN BHAWAN GUWAHATI-781008 DIST-KAMRUP (METRO) ASSAM.

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3: THE ESTATE OFFICER THE ASSAM STATE TRANSPORT CORPORATION HAVING ITS OFFICE AT PALTAN BAZAR PARIBAHAN BHAWAN GUWAHATI-781008 DIST-KAMRUP (METRO) ASSAM

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VERSUS

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GHOSH BROTHERS MOTORS PRIVATE LIMITED HAVING ITS OFFICE AND PLACE OF BUSINESS AT NH-37, LAKHRA, GUWAHATI-781034, DIST-KAMRUP (METRO), REPRESENTED BY ITS DIRECTOR/AUTHORISED SIGNATORY, SRI PRANAB KUMAR GHOSH, S/O SRI PRADYUT KUMAR GHOSH

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Advocate for the Petitioner : MR. D SAIKIA, MR. R BORPUJARI

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Advocate for the Respondent : MR. A K BARUAH, MR G J SAIKIA,MR. A KHAN

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BEFORE

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HON'BLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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11.03.2026

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Heard Mr. R. Borpujari, learned counsel for the petitioners and also heard Mr. G.J. Saikia, learned counsel for the respondent.

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2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the order dated 23.11.2022, passed by the learned Civil Judge No.2, Kamrup(M), Guwahati, (hereinafter, trial court) in Title Suit No.488/2022.

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3. Also the petitioner has challenged the order dated 23.11.2022, passed by the learned trial court in Misc.(J) Case No.698/2022, arising out of Title Suit No.488/2022.

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4. It is to be noted here that vide impugned order dated 23.11.2022, the learned trial court had dismissed the Petition No.3953/2022 filed by the petitioners in Title Suit No.488/2022 for keeping the filing of written statement in abeyance, as disposal of another application filed by the petitioners for framing of preliminary issues regarding maintainability of the suit is pending. Further it is to be noted here that vide impugned order dated 23.11.2022, the learned trial court had dismissed the petition No.3955/2022 filed by the petitioner seeking adjournment to file written objection in the Misc. case in Misc.(J) Case No.698/2022, arising out of Title Suit No.488/2022.

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5. Mr. Borpujari, learned counsel for the petitioners submits that the respondent herein has instituted a title suit, being Title Suit No.488/2022 and the petitioners herein as defendants, had entered appearance. Then taking adjournments on different occasion, they had filed a petition, No.3953/2022, for keeping filing of the written statement in abeyance till disposal of another application, which has already been filed for framing preliminary issues regarding maintainability of the suit. But, the learned Trial Court has

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dismissed the same, on the ground that the period for filing written statement by the petitioners is already over. He further submits that the respondent herein has also filed another Misc.(J) Case No.698/2022, which was pending for filing of objection and the petitioners have filed a Petition No.3955/2022 for filing objection in the said Misc.(J) Case, but the learned Trial Court has also rejected the said petition.

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5.1. Mr. Borpujari further submits that the aforesaid petitions were filed by the petitioner on the advice of the earlier set of counsel and that the petitioner has engaged new set of counsel and that for the fault of earlier set of counsel the petitioners shall not suffer. His further submission is that on sufficient ground being shown, the Court may extend the period of filing of the written statement beyond the prescribed period and that unless the petitioners are afforded an opportunity to file the written statement, they will not be able to establish their case and under such circumstances, Mr. Borpujari has contended to allow this petition.

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6. Per contra, Mr. Saikia, learned counsel for the respondent submits that the impugned order dated 23.11.2022, so passed by the learned Trial Court in Title Suit No.488/2022 and in Misc.(J) Case No.698/2022 suffers from no infirmity or illegality requiring any interference of this Court. He submits that after rejection of the petition for keeping filing of the written statement in abeyance, the petitioners ought to have filed an application along with the written statement before the learned Trial Court to accept the same, showing the ground for which the written statement could not be filed in time and without filing such an application, the petitioners have approached this Court directly. Under the given facts and circumstances he has contended to dismiss this petition.

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7. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order dated 23.11.2022 in Title Suit No.488/2022 and also in Misc.(J) Case No.698/2022.

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8. It appears that vide impugned order dated 23.11.2022 in Title Suit No.488/2022, the learned Trial Court has rejected the Petition No.3953/2022, filed by the petitioners, by

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which filing of the written statement till disposal of another application for framing of preliminary issues regarding maintainability of the suit was filed. Admittedly, they in had not filed any application before the learned Trial Court, along with the written statement, and also explaining the reason for which the same could not be filed in time. Mr. Saikia, learned counsel for the respondent has rightly pointed this out and there appears to be force in the same.

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9. It is worth mentioning in this context that in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India , reported in (2005) 6 SCC 344 and also in the case of Kailash v. Nanhku & Ors. , reported in (2005) 4 SCC 480 , it has been settled by Hon'ble Supreme Court that Order VIII Rule 1 CPC, prescribing the time (normally 30 days, extendable up to 90 days) for filing a written statement, is procedural and directory, not mandatory. Therefore, expiry of the 90-day period does not create an absolute bar; in exceptional cases and for good reasons the court has discretion to permit filing of a written statement beyond this period to prevent failure of justice.

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10. In the case in hand, it is the contention of Mr. Borpujari that due to some mistake of earlier set of counsel, the written statement could not be filed. But, assigning such ground the petitioner had not filed any application before the learned Trial Court. While it is well settled that Order VIII Rule 1 CPC, does not create an absolute bar in filing written statement when good reasons is assigned, the petitioners herein ought to have approached the learned trial court first.

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11. In that view of the matter, this Court is inclined to dispose of this present petition by directing the petitioners herein to file an application before the learned trial court in the Title Suit No.488/2022 and also in the Misc.(J) Case No.698/2022, along with the written statement and written objection, and assigning the reason for which the same could not be filed within the stipulated period.

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12. It is also further provided that on such petition being filed, the learned Trial Court shall examine the acceptability of the reasons and also to consider whether accepting the written statement beyond the prescribed period will prevent failure of justice. It is further

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provided that such exercise shall be carried out keeping in mind the principle laid down by Hon'ble Supreme Court in the cases of Salem Advocate Bar Association (supra) and Kailash (supra) .

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13. The parties are directed to appear before the learned Trial Court on 23.04.2026.

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The Assam State Transport Corporation (Astc) and 2 Ors. v. Ghosh Brothers Motors Private Limited

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The Assam State Transport Corporation (Astc) and 2 Ors. v. Ghosh Brothers Motors Private Limited

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