JUDGMENT :

Ajoy Kumar Mukherjee, J. - Affidavit-of-service filed by the learned Counsel appearing for the petitioner is taken on record.

2. The opposite parties are not represented.

3. Order being No. 15 dated September 19, 2016 passed by the learned Civil Judge (Junior Division), 1st Court, Serampore, Hooghly in Title Suit No. 570 of 2015 has been assailed by filing the present application.

4. By the impugned order learned Court below has been pleased to accept the written statement which was filed by the defendant beyond the statutory period.

5. Petitioner's case is that the petitioner filed the aforesaid suit along with a prayer for injunction. On November 17, 2015 the opposite party No. 1 had entered appearance in the said suit through his learned Advocate and prayed time to file written statement and written objection. On January 19, 2016 the opposite party No. 1 filed written objection against plaintiff's injunction application. The suit again came up for hearing on March 16, 2016 when the opposite party again filed a petition seeking adjournment to file written statement. But on that date learned Court below rejected the defendant's prayer for time to file written statement as statutory period for filing written statement was over and the Court below was further pleased to fix the next date for ex parte hearing of the suit against the defendant No. 1. On July 16, 2016 the opposite party No. 1 herein filed an application under section 151 of the Code of Civil Procedure praying for setting aside the posting for ex parte hearing of the case against opposite party No. 1 and he also filed written statement on the same day. On September 19, 2016, by the impugned order the learned Court below allowed the defendant's prayer and accepted the written statement filed by the defendant subject to payment of cost of Rs. 1,500/-.

6. Mr. Rahul Karmakar, learned Counsel appearing for the petitioner submits that the Court below erred in law as well as in fact by making out a third case which was not the case of the parties. The Court below erred in not considering that summon of the suit was received by the opposite party No. 1 on 10th October, 2015 and the date of filing the written statement should be counted from that date under the provision of Order VIII Rule 1 of the Code of Civil Procedure. The Court below also failed to consider that the defendant appeared in the suit after one month of service of summon without filing the written statement, though he filed written objection against the injunction application on January 19, 2016. In fact the Court below failed to appreciate that no cogent reason has been given by the defendant/opposite party as to what prevented him to file the written statement within statutory period.

7. Mr. Karmakar strenuously argued that the prayer for filing the written statement once rejected, subsequent filing of another application with prayer for setting aside the order of ex parte hearing, is barred by law. In fact impugned order for acceptance of written statement is hit by res judicata owing to the rejection of the application for extension of time to file written statement vide order dated March 16, 2016. In this context he relied upon paragraphs 7 and 8 of the decision in the case of Satyadhyan Ghosal and Ors. v. Deorajin Debi (Smt) and Anr., reported in (1960) SCR 590 and paragraph 11 of the decision in the case of U.P. State Road Transport Corporation v. State of U.P. and Anr. , reported in (2005) 1 SCC 444.

8. Accordingly, h