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2018 Supreme(Gau) 1457
IN THE HIGH COURT OF GAUHATI
KALYAN RAI SURANA, J.
Dipak Sharma - Petitioners
Versus
Ashok Kumar Sancheti - Respondents
CRP (I/O) No. 29 of 2018
Decided On : 26-09-2018
For the Petitioner:P. Deka, N.N. Jha, B.D. Borah, B. Devi and S.D. Saikia, Advocates.
For the Respondents:S.K. Singh, V.K. Chopra and J. Chopra, Advocates.
Headnote:
Constitution of India, 1950 - Article 227 – Civil Procedure Code,19o8 - Section 151 Order IX Rule 7, and Order VIII Rule 1 - Application under Article of Constitution of India petitioner has challenged order - Petitioner submits that he has explained reason for not been able to file written statement on date fixed and It is submitted that along with petition under Order Rule Civil Procedure Code written statement of petitioner was also enclosed and when petition under Order Rule read with Section Civil Procedure Code being Misc Case was filed written statement of petitioner was on record and trial court held that ground shown in petition Misc. (J) Case was contrary to grounds taken in petitions which were contrary to each other and by holding that petitioner has not been unable to show good cause written statement was not accepted by trial court – Held, Question that whether for plea taken in adjournment petition which is found to be incorrect petitioner can be deprived of any opportunity to file written statement is answered in affirmative and against pretext was taken trial court would be within jurisdiction to refuse adjournment for filing - Written statement on subsequent date and trial court has rightly refused to accept a false statement made before it because a false statement before a court of law cannot be encouraged and This is because Supreme Court in case of Salem Advocate Bar Association has held that Order IX tending time to file written statement cannot be made in routine and that time can be extended only in exceptionally hand cases further holding that direction of court to extend time shall not be frequently and routinely exercised so as to nullify period fixed by - Order Rule and in view of discussion above this Court is not inclined to burden this order with various other citations referred by parties and Consequently interim order passed earlier shall stands vacated and parties are left to bear their own cost and parties who are duly represented by their respective Counsel are directed to appear before Court of Civil Judge without any further notice of appearance and by producing certified copy of this order parties shall seek further instructions from - Revision dismissed
KALYAN RAI SURANA, J.
1. Heard Mr. N.N. Jha, learned counsel for the petitioner as well as Mr. J. Chopra, learned counsel for the respondent.
2. By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 10.04.2017, passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati in Money Suit No. 3/2017, by which the petition for adjournment was refused by holding that time for filing written statement cannot be extended as the ground shown in the petition No. 1870 dated 10.04.2017 is not justifiable and the suit was order to proceed for plaintiffs evidence by permitting the petitioner to participate in the proceedings. Also in challenge is the order dated 16.11.2017, passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati, thereby dismissing petition No. 3145 i.e. Misc. (J) Case No. 500/2017 in M.S. No. 3/2017, which was an application filed under Order IX Rule 7 read with Section 151 CPC with prayer to vacate the order of ex-parte proceeding against the petitioner and to accept the written statement by showing cause.
3. The learned counsel for the petitioner submits that he has explained the reason for not been able to file the written statement on the date fixed. It is submitted that along with the petition under Order IX Rule 7 CPC, the written statement of the petitioner was also enclosed and, as such, on 15.06.2017, when the petition under Order IX Rule 7 read with Section 151 CPC being Misc. (J) Case No. 500/2017 was filed, the written statement of the petitioner was on record. However, the learned trial court held that the ground shown in petition No. 3145 i.e. Misc. (J) Case No. 500/2017 was contrary to the grounds taken in petitions No. 1332 dated 09.03.2017 and 1862 dated 07.04.2017, which were contrary to each other. Hence, by holding that the petitioner has not been unable to show good cause, the written statement was not accepted by the learned trial court.
4. It is further submitted that as the written statement has been filed, by accepting the same, no prejudice would be caused to the respondent because with the passing of the order dated 10.04.2017, the learned trial court did not exercise power under Order VIII Rule 10 CPC to give judgment in the suit in the absence of his written statement.
5. In support of his submission, the learned counsel for the petitioner has placed reliance on the case of Salem Advocate Bar Association, Tamilnadu Vs. Union of India, AIR 2005 SC 3353 and the case of the Commissioner, Bangalore Development Authority Vs. Narayana (Dead) by LRs & Ors.
6. Per contra, the learned counsel for the respondent has referred to his affidavit-in-opposition filed on 24.09.2018 and it is submitted that on all the occasion when adjournment was sought for, the petitioner had assigned different reasons. It is submitted that on 09.03.2017, an adjournment was sought for on the ground that certain documents were very much necessary to be filed with the written statement could not be processed, for which the written statement could not be prepared and filed. However, the written statement filed with Misc. (J) Case No. 500/2017 was not accompanied with any document. Hence, the plea for seeking adjournment was fake. On 07.04.2017, it was projected that the petitioner was out of station for which he could not come and sign the written statement, for which the same could not be filed. But on 10.04.2017, a ground was taken that the entire file had been misplaced from the chamber, for which the written statement could not be prepared and filed. It is submitted that if written statement was ready, a soft copy would be available in computer whenever it was typed which could have been filed. It is submitted that in the application under Order IX Rule 7 CPC, reliance was placed on the written instruction purportedly from the employer of the petitioner, without annexing the same, asked him without disclosing the work site not to leave the work site. It is
