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Judgment
This Civil Revision Petition is filed against the orders of the trial court in I.A.No.77 of 2019 in OS.No.27 of 2017.
Plaintiff filed the suit for injunction. During the pendency of the suit as the defendants failed to file the written statement they were set exparte on 4.2.2019 and IA.No.77/2019 is filed to set aside the exparte order dated 4.2.2019 and also to permit them to file the written statement, it was allowed by the trial court. Aggrieved by the said order, this CRP is preferred and the petitioner mainly contended that the respondent failed to file the written statement, as such she was set exparte on 23.01.2018 and the matter was posted for exparte evidence on 4.2.2019, on that day plaintiff was examined as PW1 and exparte decree was passed.
Defendant failed to assign valid reasons for non filing of the written statement and simply submitted that she filed CRP 6915/2019 against the orders in IA No.253 of 2017 in OS No.27/2017, dated 7.11.2017 and the said application is filed for rejection of the plaint as CRP is still pending before the Hon’ble High Court, she could not file the written statement. In fact, defendant received summons on 1.5.2017. In the CRP, only Notice before admission was ordered and no interim stay or further proceedings were granted. As such the trial court rightly set the matter exparte on 23.1.2018 and passed exparte order on 4.2.2019. But the trial court without going into merits of the case allowed the petition. He further stated that after amendment of certain provisions to CPC which came into effect from 01.07.2002, under Order VIII Rule 1 of CPC, defendant shall file the written statement within 30 days and shall not be later than the service of summons, as the summons were served on 1.5.2017, she has to file the written statement within 90 days i.e. on or before 23.1.2018, but she failed to do so. It is mandatory on the part of the defendant to file the written statement within the statutory period, as such the order of the trial court in setting aside the exparte order permitting her to file the written statement on 4.2.2019, as illegal and arbitrary to the principles of law. The extension of time for filing a written statement cannot be granted in, as a matter of routine and it can be granted as an exception on appropriate reasons.
Heard the arguments of both the counsels.
Perused the order of the trial court.
Counsel for the petitioner relied upon the citations reported in 2022 Lawsuit (Ori) 24 in Himansu Sekhar Srichandan Vs. Sudhir Ranjan Patra by the High Court of Orissa reported in which it was held as follows:
“When an exparte decree is set aside and the suit is restored to file, the defendants cannot be relegated back to the position prior to the date of hearing of the suit. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit in as much cross-examine the witness of the plaintiff, adduce evidence and address argument.”
He also relied upon the citation in 2018(3) ALD 561 in Y.Venkata Ramana and others Vs. Yellaboyani Venkatamma @ Y.Munivenkatamma in which it was held as “under Order 8 Rule 1 of CPC the maximum period of 90 days was prescribed to file the written statement and providing the higher limit of 90 days is directory and extending of time cannot be made in a routine manner and it can be extended only in exceptionally hard cases.”
Counsel for the respondents relied upon the citation reported in 2003(1) SCC 557 in Saleem Bhai Vs. State of Maharashtra in which it was held the application filed under Order 7 Rule 11 of CPC is to be decided on the allegations in the plaint and filing of written statement by the contesting defendant is irrelevant and unnecessary.
Considering the arguments of the learned counsel for petitioner herein, this court finds that it is just and reasonable to confirm the order of the trial court to the extent of setting aside the exparte order dated 4.2.2019 in OS No. 27/2017 on costs, but to an extent of filing of written statement is set aside. The respondent herein is at liberty to approach the trial court by way of proper application.
Civil Revision Petition is allowed in part. Miscellaneous applications, if any pending, shall also stands closed.