The provisions of Order V Rule 1 and Order VIII Rule 1 of the Code of Civil Procedure are directory and not mandatory, allowing the court to accept written statements beyond the statutory period for reasons to be recorded.

JUDGMENT

The petitioners before this Court are the defendants in the Learned Court below and is aggrieved by the order dated 21-11- 2019 passed by Civil Judge (Senior Division) 1st Court Malda in P.S. 284/2015.

The case of the petitioners may be summed up thus;

1. The plaintiff/opposite party filed partition suit being P.S. No- 284 of 2015 in the 1st Court of Civil Judge Senior Division Malda which is bad for non-joinder of the necessary parties and defective for non-inclusion of all the properties of the predecessor-in interest of the parties.

2. The Petitioner/Defendant no-1 is working as a daily rated labour. The petitioner/defendant no-1 had to go outside to the State and to the different States of India for earning the livelihood of himself and for his family. In the circumstances the wife of the petitioner has received the summon without understanding the purports, contents and consequences of the suit receipt. The service of the said summon was beyond the knowledge of the petitioner inasmuch as the petitioner being an uneducated person will not have understood the same, however in that case had he knowledge about the same he could take assistance of his Learned Lawyer.

3. That sometime on July 2019 while gossiping with other defendants to the said suit the petitioners gathered knowledge about the suit P.S. No. 284 of 2015 pending for disposal in the 1st Court of the Learned Civil Judge Senior Division Malda. On searching the petitioner obtained the said summon of the suit from his home. Immediately upon obtaining the same the petitioner went to his Learned Lawyer and narrated about the entire incident.

4. The Learned Lawyer of the petitioner upon conducting necessary search of the suit record came to know that the suit was fixed for ex-parte hearing against the petitioner/defendant no-1 to 5, 7 and 8 i.e. all the proforma Defendants save and except the proforma Defendant No-6.

5. That the Learned Lawyer for the petitioner on 23-07-2019 filed applications for recalling the order fixed for hearing of the suit ex-parte and for show cause for failure to take steps in the suit and filing written statement to the plaint.

6. The application for show cause as to not taking steps in the matter and the application for recalling the order fixing the date for ex-parte hearing, were rejected overlooking that the written statement was filed by the petitioners/Defendant.

The petitioners being aggrieved by the order no-24 dated 21-11- 2019 passed by Learned Civil Judge Senior Division 1st Court Malda in P.S. 284 of 2015 has come up with the instant application.

It is contended by the petitioners that the Learned Court below failed to exercise jurisdiction in dismissing the application for show cause and the application for recalling the order fixing the matter for ex-parte hearing. It is further contended that the Learned Court overlooked the fact that the written statement is already filed and dismissed the application for show cause. It is also contended that the Learned Court on one hand disallowed the petition for show cause but allowed the application for amendment of plaint.

Pursuant to the filing of this application notice was issued upon the opposite parties. As the opposite parties did not appear upon receipt of the notice the case was taken up for hearing in the absence of opposite parties.

Heard Learned Advocate for the petitioners, perused the petition filed and the materials on record. Learned Advocate for the petitioner submits that the petitioners are day labourers and were outside the state and thus the Learned Court below ought to have accepted the show cause filed by the petitioners and permitted them to contest the suit. Learned Advocate further submits that as the suit is for partition of joint property all parties have interest and hence written statement filed ought to have been accepted. Learned Advocate further submits that the Learned Judge apart from considering the