Prasenjit Mandal - (1.) THIS application is directed against the order No.15 dated February 25, 2008 passed by the learned Judge, City Civil Court, 10th Bench, Calcutta in Title Suit No.468 of 2006 thereby disposing of an application dated November 2, 2006 filed by the plaintiff.
(2.) THE plaintiff/petitioner herein instituted a suit for recovery of possession from a trespasser, damages and other reliefs against the defendant/opposite party herein before the City Civil Court, Calcutta. THE defendant was served with summons on April 24, 2006 and the next date was fixed on June 22, 2006 for appearance of the defendant. THE defendant entered an appearance on June 22, 2006 and thereafter on the prayer of the defendant, the learned Trial Judge fixed the dates on August 5, 2006, September 4, 2006, September 26, 2006 and November 2, 2006 for filing a written statement by the defendant. But he failed or neglected to file a written statement on November 2, 2006. THEn the plaintiff filed an application on November 2, 2006 before the learned Trial Judge to hear out the suit ex parte and to debar the defendant from filing a written statement. That application was fixed for hearing on December 5, 2006 and then on January 5, 2007 but the defendant did not care to file a written statement again. The said application under Order 8 Rule 10 of the Civil Procedure Code (henceforth shall be called ?CPC?) was fixed for hearing on April 30, 2007 when the defendant filed a written statement without accounting for the delay in filing the said written statement. Thus, there was 356 days? delay from the date of receiving the summons. The learned Trial Judge, by passing the impugned order, disposed of the said application with a note that the suit shall be disposed of expeditiously and the written statement filed by the defendant has been accepted. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I am of the view that the impugned order passed by the learned Trial Judge cannot be supported. In order to elucidate the matter, the provisions of Order 8 Rule 1 and Order 8 Rule 10 of the CPC are to be considered and as such the said two Rules are quoted below:- Order 8 Rule 1. Written Statement.-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.] Order 8 Rule 10.-Procedure when party fails to present written statement called for by Court. ?Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.]
(3.) THEREFORE, the defendant/opposite party herein was required to file a written statement within 30 days from the date of service of summons upon him on April 22, 2006, but, the Court may extend time for the petitioner to file written statement upto 90 days provided reasonable cause has been shown by the defendant. If the defendant fails to file a written statement within 90 days as provided in Order 8 Rule 1 of the CPC, the Court may grant him permission to file a written statement provided satisfactory reasons are explained by the defendant for the delay. But, in the instant case, I find that the defendant has obviously failed to explain the delay of 356 days in filing the written statement. No leave of the Court has been sought for in filing the belated written statement. No reasons have been assigned by him for the delay. As to cause for the delay, the defendant has simply stated in the objection to the petition under Order 8 Rule 10 of the CPC that a receiver was appointed in respect of the suit property long time back in Suit No.1271 of 1961 before the Hon?ble High Court and his father paid rent to the learned Receiver in respect of the suit property and thereafter, the learned Receiver died and then his father was not in a position to determine as to whom the rent was payable. He was searching for the record and as such an appropriate application for inspection of the said record before the Hon?ble Court was filed but the record could not be traced and as such there was delay. No more particulars have been mentioned including the fact upto what period, his father had paid rent for the premises. As noted earlier, such contention is not for the acceptance of the belated written statement but for the purpose of rejection of the petition under Order 8 Rule 10 of the CPC.;