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Judgment
Gautam Kumar Choudhary, J
Heard, learned counsel for the petitioner.
The instant CMP has been filed for quashing the order dated 05.12.2023 (Annexure-3) passed by Addl. Civil Judge (Junior Division), West Singhbhum at Chaibasa in Original Suit No.10 of 2021.
Petitioner is defendant No.2 in Original Suit No.10 of 2021 in which she has been debarred from filing written statement vide order dated 10.08.2022.
It is argued by learned counsel for the petitioner that the said Suit has been filed for declaring the registered sale-deed executed by defendant No.1 in favour of defendant No.2 (petitioner) to be null and void and not binding on the plaintiff and a further prayer has been made for specific performance of agreement to sale against defendant No.1.
As per the impugned order, the petitioner did not appear on notice dated 10.08.2022. Consequently, she was debarred from filing written statement and thereafter, she entered into appearance on 29.09.2023 and moved the Court for seeking permission to file written statement, but the same has been rejected.
It is submitted that petitioner was suffering from some ailments and consequently, she could not properly communicate with the counsel and take steps for filing of the written statement.
Learned counsel for the plaintiff/ Opp. Party has defended the impugned order. It is submitted that the notice was served on 04.10.2021 and after almost two years, the petition for recalling the order debarring the defendant from filing written statement has been filed.
The order does not appear to be sustainable for the reason that even before the appearance of the defendant, she was debarred from filing written statement. If the defendant was not appearing, the proper course under Order IX Rule 7 CPC was to draw an ex-parte proceeding against the defendant. The party can be debarred from filing written statement if despite appearance, anyone does not file the written statement within 90 days after receipt of notice.
Accordingly, the impugned order is set aside. However, the written statement must be filed before the learned Trial Court within four weeks from today.
The instant CMP is allowed. Pending I.A., if any, also stands disposed of.