SHAMPA SARKAR,J. - (1.) None appears on behalf of the plaintiff/opposite party. A last chance was given to the opposite parties to be represented and to contest the revisional application before this Court as already recorded in the order dated December 13, 2019. Several learned advocates had appeared in the matter and prayed for adjournments. Finding no other alternative, this matter is being taken up ex parte against the defendant nos.2 to 10. The petitioners are the defendant nos. 11 to 15 in the Title Suit No.2774 of 2016 pending before the learned Civil Judge (Senior Division), 3rd Court at Alipore, District 24 Parganas (South) are aggrieved by an order dated December 18, 2018 by which the learned Court below refused to accept the written statement of the petitioners/defendant nos.11 to 15 in the said suit. The record reveals that by an order dated June 28, 2018, the petitioners filed an application praying for time to file the written statement as well as a written objection to the application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. The said prayer was accepted and allowed as a last chance. September 13, 2018 was fixed for hearing of the petition under Order VII, Rule 11 of the Code of Civil Procedure filed by the said defendants/petitioners and also for filing of the written statement and the written objection. On September 13, 2018, it was recorded that the plaintiff did not take any steps but the defendant nos.11 to 15 filed their written statement and served the copy. The written objection was not filed on that date. Thereafter, by an order dated December 18, 2018, the written statement was filed by the petitioners/defendant nos.11 to 15 on September 13, 2018 was not accepted and the suit was fixed for ex parte hearing against the said defendants.
(2.) The other defendants, namely, the defendant nos.2 to 10 had not been served and a date had been fixed for service, return and A/D for the rest of the defendants. At that stage when the order impugned was passed, those defendants were not contesting the suit. Service of notice upon those defendants/opposite party nos.2 to 10 is, thus, dispensed with. It appears that the learned Court below had fixed September 13, 2018 for filing of the written statement and the written statement was filed on the said date. It appears that the petitioners on June 28, 2018 had filed an application praying for time to file the written statement. On hearing of the said application, the learned Court below fixed September 13, 2018 as the date for filing written statement. In the decision of Salem Advocate Bar Association, T.N. vs. Union of India , reported in (2005) 6 SCC 344, the Hon'ble Apex Court held as follows:- "20. The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice." In the decision of Sandeep Thapar vs. SME Technologies Private Limited , reported in (2014) 2 SCC 302, the Hon'ble Apex Court held as follows:- "6. The learned counsel for the appellant has submitted that undoubtedly the limit under Order 8 Rule 1 has to be observed, but in exceptional circumstances in order to ensure that the injustice is not done, the court will have the power to permit the defendant to file the written statement. 7. We have considered the submission made by the learned counsel. In our opinion, the submission made by the learned counsel is well founded in view of the observations made by this Court in Kailash v. Nanhku [(2005) 4 SCC 480] , wherein this Court has observed as follows: (SCC pp. 499-500, para 46) "46. We sum up and briefly state our conclusions as under: (i)-(iii)*** (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though, the language of the proviso to Rule 1 of Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away. (v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case." 8. We are satisfied that in the circumstances of this case, the High Court ought to have permitted the appellant to file written statement, beyond the period prescribed in Order 8 Rule 1 CPC, given the facts and circumstances of this case."
(3.) The written statement was filed on the date fixed and as such, the order impugned dated December 18, 2018 cannot be sustained. The written statement filed by the petitioners is directed to be accepted by the learned Civil Judge (Senior Division), 3rd Court at Alipore upon payment of cost of Rs.2000/- to the plaintiff. Thereafter, the learned Court below is directed to proceed with the suit in accordance with law. The order dated December 18, 2018 passed by the learned Civil Judge (Senior Division), 3rd Court at Alipore in Title Suit No.2774 of 2016 is set aside in so far as it relates to non-acceptance to the written statement of the petitioners. This revisional application is, thus, disposed of. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis. ;