MOUSHUMI BHATTACHARYA,J - (1.) The issue in the instant application filed by the defendant is whether an application under Chapter XIIIA of the Original Side Rules of this court can be barred under Rule 3 on the ground of the written statement being filed on the same day as the summons taken out by the plaintiff in the Chapter XIIIA application.
(2.) The plaintiff has filed a suit against the defendant for a decree for eviction and recovery of khas possession of the suit property and for a decree on account of arrear rent and mesne profits. The summons of the suit was served on the defendant after which the defendant entered appearance on and issued a notice thereof to the plaintiff on the same day. The defendant contested the suit thereafter by filing a written statement almost simultaneously with the plaintiff took out a Master's Summons under Chapter XIIIA of the Original Side Rules of this court.
(3.) According to Mr. Sudip Deb, learned counsel appearing for the defendant/applicant, the application of the plaintiff under Chapter XIIIA is liable to be dismissed on the ground of limitation since the said application was filed after the prescribed period of ten days as provided under Rule 3 of Chapter XIIIA. Mr. Deb submits that the defendant informed the plaintiff of its having entered appearance in the suit by way of a letter dated 26th November, 2014, as prescribed under Chapter VIII Rule 18 of the Original Side Rules. According to him, the plaintiff should have filed its Chapter XIIIA application within ten days from the date of entering appearance by the defendant which the plaintiff failed to do and instead took out the summons under Chapter XIII on 9th December, 2014. The defendant filed its written statement on the very same day, i.e. on 9th December, 2014 and hence, the application filed by the plaintiff under Chapter XIIIA is not maintainable. Counsel takes the additional point that the plaintiff not having filed an opposition to the defendant's application on the point of maintainability of the Chapter XIIIA application, the defendant's stand has thereby not been controverted. In this connection, he places reliance on Order VIII Rule 5 of The Code of Civil Procedure, 1908 (CPC) that a denial has to be specific and shall be taken to be admitted otherwise.;