D.G.R.PATNAIK, J. - (1.) THE petitioner in this writ application under Article 227 of the Constitution of India has prayed for setting aside the order dated 12.02.2008 passed by the learned Sub Judge -I, Chaibasa in Title Partition Suit No. T.S.(P) No. 8 of 2006 by which a prayer made by the petitioner/defendant for extension of time to enable her to file her written statement, has been rejected and the petitioner has been debarred from filing the written statement.
(2.) HEARD learned Counsel for the petitioner and learned Counsel for the Respondents. Sri M.K. Dey, learned Counsel for the petitioner by referring to the copies of the various orders of the Trial Court records, wants to impress that the petitioner had filed her appearance in the proceeding on 21.11.2007 and on that date she had submitted two separate prayers. One of the prayers being for recalling the order dated 06.11.2006 by which the proceeding was posted for hearing ex -parte against the petitioner and the other being a prayer for extension of time to enable her to file written statement. Learned counsel explains that on the first prayer, by the order dated 17.12.2007 the learned Trial Court has recalled the ex -parte order dated 06.11.2006 and thereby allowing the petitioner to participate in the proceeding before it and it was only in the interest of justice that the petitioner ought to have been allowed to file her written statements. Learned Counsel would explain further that as a matter of fact the summons which were issued by the Court against the petitioner was at an address where, even to the knowledge of the plaintiff, the petitioner was not living as because the petitioner was living in Delhi whereas the summons were issued at the address of Chakradharpur and therefore the petitioner could not possibly have knowledge about the issuance of summons against her. On considering this aspect, the Trial Court had recalled its ex -parte order against the petitioner which was earlier passed on 06.11.2006. Learned counsel explains further that under such circumstances, the computation of the period of 30 days as per the provisions of Order 8 Rule (1) of the C.P.C. ought to have been from 21.11.2007, that is the date on which the petitioner had appeared before the Court below and calculating from that date the learned Trial Court ought to have considered exercising its discretion in favour of the petitioner to enable the petitioner to file her written statement up to a maximum period of 90 days, but on the other hand, by the impugned order, the learned Trial Court has debarred the petitioner unjustly even before the completion of the maximum period of 90 days.
(3.) LEARNED Counsel for the Respondent/Plaintiff would strongly contest the stand taken by the petitioner as being incorrect, misleading and misconceived. Mrs. I. Sen Choudhary appearing for the Respondent/Plaintiff would explain that the provisions of Order 8 Rule 1 of the C.P.C. has not been correctly explained by the learned counsel for the petitioner in as much as the provisions declare that the defendant is supposed to file his/her written statement within 30 days from the date of service of summons and not from the date of his/her appearance in the Court. Learned Counsel further submits that the suit before the Trial Court being a Partition Suit and the parties belonging to the same family, the pendency of the suit before the Court below was very much within the knowledge of the petitioner from the very beginning and the petitioner had deliberately and intentionally failed to appear in the suit only to delay the proceedings. The suit was filed way back in the early months of 2006 and the proceedings had reached almost the stage of conclusion and it was only at the stage when the trial Court was about to deliver its judgement, that on the pen -ultimate date the petitioner filed her appearance.;