IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.1294 of 2019

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1.

Ganga Singh, Son of Late Lakhan Mahto, Resident of Village- Malipur

Pakari, P.S. and District- Sitamarhi.

2.

Ram Lagan Singh @ Ram Lagan Mahto, Son of Late Lakhan Mahto,

Resident of Village- Malipur Pakari, P.S. and District- Sitamarhi.

... ... Petitioner/s

Versus

1.

Satya Narayan Mahto, Son of Late Sudi Mahto @ Raudi Mahto, Resident of

Village Malipur Pakari, P.S. and District Sitamarhi.

2.

Nirmala Devi, Daughter of Late Sudi Mahto @ Raudi Mahto and Wife of

Nagendra Singh, Resident of Village Balaha Rasalpur, P.S.- Bajapatti,

District- Sitamarhi.

... ... Respondent/s

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Appearance :

For the Petitioner/s

:

Mr. Vaidehi Raman Prasad Singh, Advocate

For the Respondent/s

:

Mr. Sanjay Kumar, Advocate

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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA

ORAL JUDGMENT

Date : 24-01-2023

Heard learned counsel for the parties.

2. This Civil Miscellaneous application has been filed

against the order dated 04.04.2019 passed by the learned

Munsif, Sadar, Sitamarhi, in T.S. No. 11 of 2018, whereby he

has rejected the application dated 30.01.2019, filed by

petitioners-defendants for recall of the order dated 12.09.2018

(wrongly mentioned as 19.11.2018) debarring from filing their

written statement in the suit.

3. The facts of this case, in brief relevant for disposal

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of this application, are that the plaintiffs/respondents filed T.S.

No. 11 of 2018, in the Court of the learned Munsif, Sitamarhi

Sadar, for declaration of their title over Schedule-II land and for

recovery of their possession of the suit land. After service of

summons, the petitioners-defendants appeared in the case on

31.07.2018 and were given last opportunity on 07.09.2018 to

file their written statement but defendants failed to file their

written statement within time and due to that reason vide order

dated 12.09.2018 the Trial Court debarred the defendants from

filing of their written statement. The defendants by filing written

statement filed petition for recall of the said order stating that

for want of the required papers they would not filed their written

statement within time. The learned Trial Court observed that the

Court cannot exercise inherent power to extend the time period

provided by the law and found that no sufficient cause had been

shown for delay of about 4 months in filing written statement

and directed the plaintiffs to proceed in accordance with Order

VIII Rule 10 CPC and to give their evidence.

4. Learned counsel for the petitioners submits that the

petitioners had duly explained the reason of delay in filing

written statement within the prescribed time and they have the

good case on merit and if the written statement is not allowed to

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be taken on record the great prejudice would cause to the

petitioners and the interest of justice requires the adjudication of

case on merit. He further submits that the time limit to file

written statement under Order VIII Rule 1 is a directory and not

mandatory and the courts have the power to extend the time

limit beyond 90 days grace period as well in non-commercial

suits on the sufficient and valid reasons to be recorded.

5. Learned counsel for the respondents conceded that

the Court has power to extend the time period. He submits that

heavy cost may be imposed on the petitioners for not filing the

written statement within the prescribed time period and causing

delay in proceeding of the suit.

6. The catena of Judgments by the Hon’ble Supreme

Court of India, interpreting Order VIII Rule 1 of the Code of

Civil Procedure, 1908, had settled the position that the

requirement to file written statement within