The right to file a written statement is essential and must be prioritized, though negligence can affect the outcome of such permissions.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. J. Sharma, the learned counsel appearing on behalf of the petitioner and Mr. L. Talukdar, the learned counsel appearing on behalf of the respondents.

2. The petitioner herein has approached this Court challenging the order dated 03.03.2021 passed by the learned Court of the Munsiff No.2, Kamrup (M) at Guwahati in Title Suit No.43/2019 whereby the application filed under Order IX Rule 7 of the Code of Civil Procedure, 1908 (for short ‘the Code’) was rejected on the ground that the cause shown in the said application was not a good cause.

3. This Court has duly perused the order dated 27.06.2019 whereby the learned Trial Court taking into account that the service of summons was duly effected on 22.02.2019 and the written statement was not filed have proceeded with the suit to the stage of ADR/Issues thereby fixing the matter on 01.08.2019. On the next date, an application was filed by the petitioner stating the grounds why the written statement could not be filed on 27.06.2019.

4. The respondents herein had filed their written objection to the said application and pursuant thereto, the learned Trial Court had passed the order dated 03.03.2021 whereby the application under Order IX Rule 7 of the Code was rejected on the ground that the cause shown was not a good cause.

5. Mr. J. Sharma, the learned counsel appearing on behalf of the petitioner has submitted that there was no negligence on the part of the petitioner and it was on account of her illness and sudden death of her uncle that the petitioner could not file the written statement. The learned counsel further submitted that between the petitioner and the respondents, another suit has already been decreed in favour of the petitioner which is presently pending at the stage of execution and as such, if any ex-parte decree is passed in the instant proceedings, it would seriously impact the rights of the petitioner. The learned counsel further submits that the written statement of the petitioner is ready and can be filed on any date as this Court may direct.

6. Mr. L. Talukdar, the learned counsel appearing on behalf of the respondents submitted that a perusal of the order dated 27.06.2019 clearly shows that the written statement was not filed within the mandatory period of 90 days and as such, there is no error in proceeding ex-parte against the defendant No.1/the petitioner. He further submitted that the cause which has been shown in the application under Order IX Rule 7 of the Code under no circumstances can be said to be a good cause for putting the clock back to the stage of 27.06.2019.

7. This Court has heard the learned counsels for the parties and has also perused the materials on record.

8. Before discussing on the merits of the instant case, this Court finds it relevant to make an observation that the application filed under Order IX Rule 7 of the Code was filed on 01.08.2019 and it surprises this Court that it took more than one and half years for the said application to be disposed of vide the impugned order dated 03.03.2021. Be that as it may, on the facts, it is seen that the petitioner herein has assigned the cause that she could not file her written statement on account of sudden illness as well as death of her uncle on the date so fixed i.e. on 27.06.2019. In addition to that, this Court also finds it relevant to take note of that the procedural laws are always subservient to the interest of justice and as filing of a defence is a substantive right, the learned Trial Court ought to have exercised its jurisdiction by allowing the petitioner to