GIRISH CHANDRA RAY Vs. UMAKANTA MOHANTY

JUDGEMENT

(1.) THIS Writ Petition has been filed invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India, assailing the Order dated 5.4.2004 passed by the Civil Judge (SD), Puri in C.S. No. 182 of 2003.

(2.) THE petitioner as plaintiff has filed the aforesaid suit under Section 6 of the Specific Relief Act with a prayer for recovery of possession. Notice in the suit was issued to the defendants and the suit was posted to 11.12.2003 for filing of written statement. Unfortunately on the said date on B. B. Misra, a Senior Advocate of Puri Bar expired. The advocate on record for the defendants in the suit was attached to the office of said B. B. Misra. Due to the sad demise of the Senior Advocate, the advocate for the defendants could neither appear nor could file the written statement. Consequently the defendants were set ex parte and the suit was adjourned to 5.2.2004 for ex parte hearing. On the said date the written statement was filed along with a petition praying for setting aside the ex parte order and to accept the written statement. The Court exercising its discretion recalled the order setting aside the defendants ex parte and the accepted the written statement. The plaintiff is aggrieved by the said order.

(3.) NO doubt under Order 8, Rule 1 of the Code a defendant is required to present his written statement within thirty days from the date of service of summons and under no event later than ninety days. In the present case, however, as submitted by Mr. Sahoo, the date fixed by the Court for filing of written statement was beyond ninety days. Thus no laches can be attributed to the defendants. Unfortunately, however, on the said date a senior advocate expired and due to reasons beyond control the defendants could not file the written statement and consequently they were set ex pane and the suit was adjourned to 5.2.2004. On the said date, however, the written statement was filed along with a petition to accept the same and to recall the order setting the defendants ex parte. The Court below by a reasoned order allowed the petition, recalled the order and accepted the written statement.