Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the petitioner.
(2.) Learned Appellate Court of District Judge-V , Dhanbad by the impugned order dated 28.5.2016 passed in Title Appeal No. 41 of 2012, refused to allow the petition under Order VIII, Rule 1 read with Section 151 of the Civil Procedure Code preferred by the Defendant No.14/Appellant there in for acceptance of the written statement at the appellate stage. Perusal of the impugned order and the relevant records shows that in the Title (Partition) Suit No.165 of 2002 instituted before the Court of learned Civil Judge Senior Division No.V, Dhanbad, Defendant No. 14 did not file written statement even after 6 months of his appearance neither was any prayer made for condonation of delay for acceptance of written statement. Defendant No. 14 took active part in cross-examination of the witnesses. The trial concluded in the year 2012 by pronouncement of judgment dated 30.3.2012 (Annexure-3) where under the suit was decreed. After appearance of Defendant No.14 on 3.2.2003 itself and after several adjournments granted for filing of written statement, when Defendant No.14 failed to file the same, on 16.8.2003 he was debarred from filing written statement. Though written statement was filed there after but no steps were taken for condonation of delay or for taking it on record, neither was the order of debarment challenged in any Superior Court. Defendant No.14 took part in the whole trial till pronouncement of the judgment in 2012. Learned Appellate Court was therefore not satisfied that any leave is required to be granted to such a party on account of his conduct.
(3.) Learned counsel for the petitioner has relied upon a judgment rendered by the Hon'ble Supreme Court in the case of Sambhaji & others v. Gangabai & others, 2008 17 SCC 117 in order to advance his argument that liberal approach is required in exercise of powers under Order VIII, Rule 1 of the CPC to accept written statement filed even after 90 days. The facts of the case however show that the Appellant therein had sought permission to file written statement during the trial stage itself though beyond the period of 90 days invoking Order VIII, Rule 1 of the CPC, which was declined by the Trial Court and upheld by the High Court as well. In the facts of the present case, the conduct of the defendant No.14/ appellant therein does not show any sufficient ground to accept the prayer at the appellate stage. If the order of debarment remained unchallenged through out the proceedings of the suit before the learned Trial Court and culminated in the judgment and decree dated 30.3.2012 (Annexure-3) in which Defendant No. 14/Appellant actively participated, any leave to grant acceptance of written statement at the appellate stage would not be proper in the eye of law and would definitely lead to a great prejudice to the other side. Therefore, the approach of the learned Trial Court cannot be said to suffer from infirmity in law or proper application of mind to the facts of the case and provisions of the CPC which calls for any interference under Article 227 of the Constitution of India.;