JUDGMENT :

Heard Shri R. Ali, learned counsel for the petitioners who is aggrieved by two orders passed by the learned Additional District Judge, FTC No. 2, Kamrup (M), Guwahati.

2) By the first order dated 01.03.2017, the petition filed by the present petitioners who are defendants for allowing to file written statement has been rejected. By the subsequent order dated 12.09.2018, the petition to vacate ex-parte and to allow filing of written statement have been rejected. It may be mentioned that along with the petition filed on 12.09.2018. The written statement was also placed on record by the present petitioners.

3) By referring to the plaint, Shri Ali, learned counsel submits that the plaint has been instituted by a Trust while the present petitioners are defendant nos. 2 & 3. Unfortunately, while notice was issued, neither any documents annexed to the plaint nor the plaint itself was furnished to the learned counsel for defendant nos. 2 & 3 or the defendant nos. 2 & 3 themselves.

4) Though the suit was instituted in the year 2016, the same situation continued and during the pendency thereof, the plaintiff had filed a petition on 15.12.2016 under order VI Rule 17 of the CPC praying for amendment of the plaint. The learned Court accordingly allowed the aforesaid prayer made on behalf of the plaintiff whereby amendment was allowed. The said order further reflects that the defendant nos. 2 & 3 (the present petitioners) had filed a petition to furnish the plaint and the documents, which was also allowed by directing the plaintiff to furnish. The next date was accordingly fixed on 01.03.2017 for filing the written statement. It may be mentioned that on the same date i.e. 20.02.2017, copy of the plaint was furnished to the learned counsel for the defendants nos. 2 & 3 (present petitioners), the acknowledgement of the receipt being given in the order sheet itself which is revealed from the photocopy of the original order sheet. On the next date, i.e. 01.03.2017, the present petitioners had filed a petition for allowing some time to file the written statement. The learned Court below after making certain observation regarding the various dates of issue of summons etc. had rejected the petition and came to a finding that defendants would not be allowed to file the written statement. The further endeavour of the petitioners by filing another petition for allowing the written statement failed to yield any fruitful results and culminated in order dated 12.09.2018, whereby the Court declined to revoke the observation made earlier to proceed ex-parte.

5) The learned counsel has submitted that it is no longer res-Integra that the provisions of 8 Rule 1 are directory in nature. At the same breadth, it is submitted that the present is not a case of delay at all as not only the documents, but the plaint itself was furnished to the learned counsel for the petitioners only on 20.02.2017 that too at the direction of the Court. Under such circumstances, it was wholly unjustified on the learned Court below in calculating 90 days from the date of issue of summons as without a copy of the plaint, a contesting party would be deprived of filing an effective statement of defence.

6) In respect of his submission, the learned counsel has placed reliance upon a case of this Court reported in (2006) 3 GLR 230 Srinivas Vasudev Vs. Vinod Kumar Kothari. This Court in the said case of SrinivasVasudev(Supra)after relying upon the case on the subject decided by on the Hon’ble Supreme Court namely, Kailash vs. Nanhku & Ors. (2005) 4 SCC 480 and Smt Rani Kusum Vs Smt. Kanchan Devi and Ors. (2005) 5 SCC Pg 750 has reiterated that provisions of Order 8 Rule 1 cannot held to mandatory but are directed in nature and the only requirement is whether the defendant has come up with reasonable explanation.

7) In instant case, this Court finds force in the submission of the learned counsel that by the impugned orders, the defendants nos. 2 & 3 have been denied of a reasonable opp