The pendency of an application under Order 7 Rule 11 of CPC can be considered a sufficient reason for not filing the written statement within the prescribed period.

Rakesh Kumar Jain, J.

1. Plaintiffs have filed this revision petition against the order of Addl. Civil Judge (Senior Division), Amloh, dated 16.9.2010 by which an application filed by them for striking off defence of the defendants for not filing the written statement within 30 days as provided under Order 8 rule 1 of Code of Civil Procedure, 1908 (for short, CPC) has been dismissed.

2. Plaintiffs filed a suit for partition in which the defendants were allegedly served on 30.1.2006. They filed an application on 21.7.2006 for striking off defence of the defendants in not filing the written statement within 30 days much-less 90 days as provided under Order 8 Rule 1 of the CPC.

3. The application was contested by the defendants by way of reply dated 23.8.2006 in which it was alleged that they have not adopted any dilatory tactics by not filing the written statement because they had already filed an application under Order 7 Rule 11 of the CPC for rejection of plaint which was not decided.

4. The trial Court, vide its impugned order, observed that the defendants were bonafidely pursing their application filed under Order 7 Rule 11 of CPC which was decided on the same date i.e. 16.9.2009 when the application filed by the plaintiffs for striking off defence of the defendants for not the filing the written statement within time as provided under Order 8 Rule 1 of the CPC was dismissed.

5. Learned counsel for the plaintiffs/petitioners has vehemently argued that after the amendment in the CPC w.e.f. 1.7.2002, 30 days time is provided to the defendants to file the written statement from the date of service of summons. However, there is an exception to file beyond that period in case the Court finds a sufficient reasons to be recorded in writing. He has submitted that there was no sufficient reason assigned by the defendants for not filing the written statement within the prescribed period, therefore, the impugned order suffers from material irregularity and illegality and deserves to be set aside.

6. On the other hand, learned counsel for the defendants/respondents has submitted that the reason for not filing the written statement within the stipulated period was an application filed by the defendants under Order 7 Rule 11 of CPC for rejection of the plaint. It is submitted that in the case of success of the said application, there would have been no occasion for the defendants/respondents to file the written statement as the Court would have rejected the plaint filed by the plaintiffs.

7. I have heard learned counsel for the parties and perused the record with their assistance.

8. Before referring to the rival contentions of the learned counsel for the parties, it would be relevant to refer to Order 7 Rule 11 and Order 8 Rule 1 of the CPC :-

"Order 7 Rule 11. Rejection of plaint. - The plaint shall be rejected in the following cases :-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9.

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such tim