Back
GAUHATI HIGH COURT
A.K. Goswami, J.
Smti. Dulumoni Saikia —Appellant
versus
Sri Narendra Nath Sarma —Respondent
RSA No.139 of 2005
Decided on 7.8.2015
Counsel for the Parties:
For the Appellant:Mr. D.K. Kataki, Advocate
For the Respondent: None appears
IMPORTANT POINT
Delay in filing of written statement must be liberally condoned.
Headnote:(A) Civil Procedure Code, 1908—Order 8 Rules 1 and 5—Written statement—Limitation—Extension—It will be open to Court to exercise discretion to permit defendant to file written statement beyond period of 90 days if exceptional circumstances have been made out—However, Legislature having fixed upper time-limit of 90 days, discretion has to be exercised judiciously and not in a routine manner so as not to render period fixed illusory—Shutters must not be pulled down to deprive defendant the opportunity of participating in process of justice dispensation if exceptional cause is shown for not being able to file written statement within period as prescribed in Order 8 Rule 1 C.P.C. (Para 20)
(B) Civil Procedure Code, 1908—Order 8 Rules 1 and 5—Written statement—Limitation— Merely because a last chance was given, same may not warrant rejection of prayer for further time if exceptional cause is shown—If petition for grant of time to file written statement is rejected only on ground that last chance was granted earlier though petition, otherwise, has merit, same will cut at very root of justice delivery system—It all depends on cause shown and if cause shown justifies grant of further time to file written statement, then fact that a last chance was given earlier cannot be a deterrent to pass appropriate orders granting further time. (Para 23)
Result: Appeal allowed.
A.K. Goswami, J.—On 06.08.2015, this Court passed the following order:-
“Heard Mr. D.K. Kataki, learned counsel for the appellant. None appears for the respondent though the names of the counsel are shown in the cause-list.
Heard-in-part.
In order to grant an opportunity to the counsel for the respondents, case be again called tomorrow i.e. on 07.08.2015.”
2. To-day also when the case is called, there is no representation on behalf of the respondent/plaintiff.
3. Mr. D.K. Kataki, learned counsel for the appellant/plaintiff has made further submissions today. As the learned counsel for the respondent/defendant has remained absent, the instant appeal is disposed of after hearing the learned counsel for the appellant/plaintiff.
4. This appeal is presented by the defendant against the judgment and decree dated 08.02.2005 passed by the learned District Judge, Morigaon in Money Appeal No.2/2004, affirming the judgment and decree dated 07.06.2004 passed by the learned Civil Judge (Senior Division), Morigaon in Money Suit No.6/2002.
5. The plaintiff filed the suit for recovery of Rs.50,000/- along with interest at the rate of 18% per annum from the date of receipt of the amount by the defendant till the amount is realized.
6. The case set out in the plaint is that the plaintiff and the defendant were known to each other and the defendant, being in need of money, approached the plaintiff in the year 1999 for a loan of Rs.50,000/- and accordingly, the plaintiff extended help by paying Rs.50,000/- as loan and in acknowledgement thereof, the defendant also executed a Hand- Note on 12.11.1999, promising to pay the said amount as and when demanded by the plaintiff.
7. The suit was filed on 11.11.2002 with deficit court-fee. The suit was dismissed for default on 13.12.2002 as the plaintiff was absent on that date without steps. The suit was restored to file by an order passed on 20.02.2003 in Misc.(J) Case No.2/2003. Order dated 25.04.2003 indicates that summons to the defendant was returned after service and that as the defendant was absent, the suit would proceed ex parte against her. In the said order, date of service of summons upon the defendant was not mentioned. Perusal of the records goes to show that summons was served on the defendant on 04.04.2003. By an order dated 25.04.2003, case was fixed for ex parte hearing on 06.05.2003. Adjournments were sought for on that day and on 15.05.2003 and finally, on 04.06.2003, plaintiff adduced evidence in the form of PW-1 and the suit was thereafter decreed on 05.06.2003.
8. The defendant filed a petition under Order 9 Rule 13 of C.P.C. on 23.06.2003 for setting aside the ex parte decree and the said petition was registered as M.J. No.12/2003. After hearing the parties, by an order passed on 31.10.2003, the ex parte decree was set aside and the original suit was restored to file subject to payment of cost of Rs.100/-. The Money Suit was put up for orders on 08.12.2003 and 19.12.2003 was fixed for appearance. On 19.12.2003, the defendant prayed for time to file written statement and the petition was allowed fixing 19.01.2004 for filing written statement. On 19.01.2004, the defendant was absent but it is recorded in the order that there was a “Bandh” on that day, and accordingly, 29.01.2004 was fixed for filing written statement. Prayer for grant of time to file written statement was made by the defendant on 29.01.2004 and 09.02.2004. On 09.02.2004, last chance was given fixing 21.02.2004. On 21.02.2004, both the parties were absent and the case was fixed on 05.03.2004 for filing written statement. On 05.03.2004, again a prayer was made for grant of time to file written statement, and as a last chance, time was granted fixing 16.03.2004. On 16.03.2004, a petition, vide Petition No.240/2004, was filed for grant of time to file written statement on the ground of ailment and a medical certificate was enclosed. The petition was rejected and the case was fixed for ex parte heari
