- (1.) Challenge is to the Order No.12 dated December 4, 2010 passed by the learned Civil Judge (Senior Division), Malda in Partition Suit No.258 of 2007 thereby not accepting the written statement filed by the applicants. The short fact is that the plaintiffs/opposites herein instituted a suit for partition against the petitioners before the learned Civil Judge (Senior Division), Malda. In that suit, the petitioners entered appearance on February 20, 2008 and prayed for time for filing a written statement. on November 5, 2008, The petitioners filed their written statement along with an application showing cause for delay in filing the said written statement. The written statement was not accepted by the learned Trial Judge holding that the explanation offered by the petitioners, was not satisfactory. Being aggrieved by the impugned order, this revisional application has been preferred. Now, the question is whether the impugned order should be sustained.
(2.) Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiffs/opposite parties herein instituted a suit for partition against the co-owners. The defendants / petitioners herein entered appearance on February 20, 2008. They filed the written statement on November 5, 2008 i.e. more than 8 months from the date of appearance. Therefore, they WERE required to file the written statement within 30 days from the date of appearance as per provisions of Order 8 Rule 1 of the Civil Procedure Court (henceforth shall be referred TO as C.P.C.). The learned Trial Judge has quoted Order 8 Rule 1 of the C.P.C. in the impugned judgment. Thereafter, he has discussed that the time for filing a written statement could be extended up to 90 days from the date of appearance, on the application of the defendants. If there is a further prayer for extension, the same should be considered on merits. Thereafter, the learned Trial Judge has discussed the ratio of the decision of Kailash v. Nanhku, 2005 AIR(SC) 2441 The learned Trial Judge has also considered the decision of R.N. Jadi & Brothers v. Subhashchandra in details and thus, the learned Trial Judge has concluded that according to the decision of Kalish (supra), time limit under Order 8 Rule 1 of the C.P.C. is directory and not mandatory. But, unless and until, exceptional grounds are made out, the extension beyond 90 days, is not permissible. The defendants have contended that the father of the plaintiffs and subsequently, the plaintiffs had sold their right, title and interest in the suit properties in nineteen hundred and fifties and then in nineteen hundred and eighties. Had it been the fact the transferees must be in possession of the suit properties. In that case, it will not be difficult for the defendants to collect the particulars from the transferees. Had the defendants been really eager to get the particulars, they would have got the same from the transferees within the time schedule as provided in Order 8 Rule 1 of the C.P.C. The defendants / petitioners have failed to show sufficient explanations to why there was a delay of more than 8 months from the date of appearance.
(3.) Though, it is a suit for partition and everybody of the parties may be treated as plaintiff and defendants in the other way, yet Order 8 Rule 1 of the C.P.C. is applicable to all the suits. Time schedule has been framed for expeditious disposal of the suit and to resist unnecessary delay or harassment on the part of the defendants. So, when the defendants failed to file the written statement even within 90 days, they were to show sufficient reasons for non-filing of the written statement within 90 days. The learned Trial Judge has discussed the matter in details and then he has arrived at a conclusion that the explanation of delay in filing the written statement is not satisfactory.;