Smt Sandhya Rani Ghosh And Ors. Vs Smt Sova Devi

Smt. Sova Devi, wife of Sri Badri Bishal Pathak, resident of village Baharagora, P.O. & P.S. – Baharagora District – East (Singhbhum), Jharkhand. … … Respondent

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mrs. Vani Kumari, Advocate For the Respondents : Mr. Suraj Singh, Advocate ---

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16 /09.03.2026 Heard the learned counsels appearing on behalf of the parties.

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2. This writ petition has been filed for the following reliefs:

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(i) For quashing that part of the order dated 16/9/2015 passed in T.S. Case No.38/2013 by the Court of learned Civil Judge, Junior Division, Ghatsila whereby and whereunder the written statement filed by the petitioners have been refused to be accepted by the learned trial court.

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(ii) Upon quashing that part of the order 16/9/2015 be further pleased to direct written statement filed by the petitioners be accepted.

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And/or

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(iii) For any other relief/reliefs for which the petitioners are entitled to in law and equity.

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3. The learned counsel for the petitioners while giving the timeline has submitted that as per the records, the suit seeking declaration of right, title, and interest and for confirmation of possession was filed by the plaintiff as back on 20.11.2013. It was admitted on 22.01.2014 and notices were issued. She submits that as

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per the impugned order itself, the notice was personally served upon defendant no.1 but so far as defendant nos.2 and 3 are concerned, the notice was served through their mother and wife respectively.

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4. The learned counsel submits that the petitioners were engaged in taking care of defendant no.1, who was under medical condition and a prescription was also filed before the court, which is dated 01.04.2014.

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5. The learned counsel submits that under such circumstances, the petitioners could not appear before the court and the proceedings was set ex parte on 04.06.2014. However, they appeared on 16.07.2014 and a petition seeking recall of the ex parte order was filed on 05.11.2014 and ultimately the impugned order was passed rejecting the petition dated 05.11.2014. The learned counsel submits that the reason for not filing the written statement on time is bonafide and the proceeding itself was set ex parte prior to completion of 90 days from the date of service of summons. She has also submitted that there is no order by which the notice served upon the mother of defendant no.2 and wife of defendant no.3 was accepted as validly served upon defendant nos.2 and 3 respectively.

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6. The learned counsel submits that the time limit for filing written statement is directory in nature and not mandatory and facts and circumstances under which the written statement was not filed is to be considered for accepting the written statement. She submits that the petitioners are also ready to pay some cost as may be fixed by this Court. The learned counsel for the petitioner has relied upon the judgement reported in (2005) 4 SCC 480 (Kailash Vs. Nanhku and Others), paragraph 27, dealing with filing of written statement in suit is quoted as under:

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“27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It

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is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.”

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7. The learned counsel for the respondents has opposed the prayer and submitted that in spite of having appeared on 16.07.2014, the petition seeking recall of ex parte order was filed only on 05.11.2014. The learned counsel also submits that the impugned order does not call for any interference.

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8. After hearing the learned counsel for the parties and upon going through the materials placed on record, it appears that the order dated 04.06.2014 indicates that the court recorded that there has been proper service of notice upon the defendants on 24.03.2014, but the defendants had not appeared in spite of knowledge and the proceeding was set ex parte by the same order and the next date was fixed on 18.06.2014. On 18.06.2014, the matter was adjourned for ex parte hearing and it was fixed on 16.07.2014. On that date, the defendants filed their vakalatnama and also filed written statement along with vakalatnama, but the same was not accepted. Thereafter, the case was fixed on 13.08.2014, 10.09.2014 and 05.11.2014 and on 05.11.2014, a petition was filed for recall of ex parte proceedings, which has ultimately been rejected by the impugned order.

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9. The impugned order itself reveals that defendant no.1 was suffering from medical condition and the notice upon defendant nos.2 and 3 is said to have been served through their mother and wife respectively. It was the case of the defendants that they were attending to the medical conditions of defendant no.1.

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10. It appears that upon filing of the vakalatnama, they filed their written statement, but there has been some gap in filing the petition seeking recall of order by which the proceeding was set exparte .

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11. This Court is of the considered view that there was sufficient explanation placed on record for not filing the written statement within 30 days or within 90 days from the date of service of summons. The fact remains that the summon upon defendant nos.2 and defendant no.3 were not personally served. Rather, it was served to the mother and wife respectively and there is no order by which the notice served through mother and wife is accepted as validly served.

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12. Considering the totality of facts and circumstances of this case, this Court is of the view that the impugned order refusing to recall the ex parte proceeding and to accept the written statement calls for interference under Article 227 of the Constitution of India.

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13. The impugned order dated 16.09.2015 is hereby set aside subject to payment of cost of Rs.15,000/- to be deposited by the petitioners before the court within a period of one month from the date of communication of this order to the concerned court. The cost should be immediately remitted to the plaintiffs upon due identification.

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14. Upon payment of cost, the written statement be taken on record and parties to proceed as per law.

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15. At this stage of dictation of the order, it has been pointed out that petitioner no.1 has expired. The fact remains that petitioner nos.2 and 3 are the sons of petitioner no.1. This aspect of the matter be also taken care by the learned court.

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16. This writ petition is disposed of.

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17. Pending interlocutory application, if any, stands closed.

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18. Since the title suit is of 2013, the learned court shall take steps to expeditiously dispose of the suit. Parties to cooperate.

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19. Let a soft copy of this order be communicated to the court concerned through “FAX/email”.

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(Anubha Rawat Choudhary, J.)

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