The main legal point established in the judgment is that the time for filing a written statement under Order 8 Rule 1 CPC can only be extended in exceptionally hard cases, and an application under Order 9 Rule 13 CPC cannot be made for retrieving the lost opportunity to file the written statement.

JUDGMENT :

A.K.Rath, J.

By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 5.12.2016 passed by the learned Civil Judge (Jr.Division), Salipur in C.S.No.99 of 2014, whereby and whereunder, learned trial court has rejected the application of the defendant to accept the written statement-cum-counter claim.

2. The plaintiff-opposite party instituted the suit for partition. On 11.9.2014 the defendant-petitioner entered appearance and took time to file written statement. Time petition was allowed. Thereafter he took several adjournments to file written statement. Finally by order dated 21.3.2015 he was debarred from filing of the written statement, but allowed to contest the suit. The suit was decreed ex parte on 20.7.2015. Thereafter he filed CMA No.127 of 2015 under Order 9 Rule 13 CPC to set aside the ex parte judgment. On 12.8.2016, ex parte judgment was set aside. While matter stood thus, he filed an application under Order 8 Rule 1 CPC on 28.9.2016 to accept the written statement-cum-counter claim stating that he took several adjournments to file written statement. He was ill from 25.4.2015 to 12.7.2015 and 13.7.2015 to 4.8.2015. The suit was decreed ex parte. After recovery from illness, he filed an application under Order 9 Rule 13 CPC to set aside the ex parte judgment dated 20.7.2015. The same was allowed. There was no latches. Placing reliance on a decision of this Court in the case of State of Orissa and others v. Smt.Sitanjali Jena, (2016) 121 CutLT 492, learned trial court held that the defendant can participate in hearing of the suit and cross-examine the plaintiff's witnesses. Held so, it rejected the petition.

3. Heard Mr.Arun Kumar Mishra-2, learned counsel for the petitioner and Mr.Damodar Patra, learned counsel for the opposite party.

4. Mr.Mishra-2, learned counsel for the petitioner submitted that the cause of action for filing of the counter claim arose after the date of presentation of the plaint. The defendant filed an application to file written statement after ex parte judgment was passed. Learned trial court observed that the same has become infructuous. After ex parte judgment was set aside, he filed the written statement-cum-counter claim along with an application to accept the same. The defendant assigned sufficient cause in not filing the written statement in time. The order suffers from vice of non-application mind.

5. Per contra, Mr.Patra, learned counsel for the opposite party submitted that the defendant took several adjournments to file written statement. He did not file the written statement. He was set ex parte. He was debarred from filing of the written statement on 21.3.2015. The said order has attained finality. The ex parte judgment was pronounced. Thereafter, he filed an application to set aside the ex parte judgment. The application was allowed. Once the ex parte judgment is set aside, the defendant is relegated back to the position when the suit was posted for ex parte hearing. In the petition no reason has been assigned to accept the written statement filed at a belated stage.

6. Order 8 Rule 1 CPC, which is the hub of the issue, is quoted hereunder:

"1. Written Statement The defendant shall, within thirty days from the date of service of summons on him, present a written statement on his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

7. Order 8 Rule 1 CPC was the subject matter of interpretation in the case M/s.SCG Contracts India Pvt. Ltd. v. K.S.Chamankar Infrastructure Pvt. Ltd. and others, 2019 SCCOnLine(SC) 226. The apex Court held that the provisions of Order VIII Rules 1 and 10 can no longer be said to be directory, but can only be said to be mandatory. It wa