?^ iit>. HIGH COURT OF CHHATTISGARH AT Bll.ASPUR WRITPETITION No. 1791 of 2006 «ift<fl at 1^3 vm^ ^SRff» 3:riws[ ?R^ m ^3S 65 q4, toift 'V^ 'gdFft ^RIT ^e gra??r, y^. ^ter g'Nt 1S[cTT fidl«y>i (^O^ro) a^r 'srel^l^pr feiracft ^ 3^ cism TOR ^ 69 ^, Fldl'Hl ^Tlfe;T S^T dE^ftcT g^ 'd^astilci yi'isniq tefTftclRiy TOftTPTS 5TPFR ^RT- RlclMSr ^St^T Rdi^f^ fsvn ^ciwy. %ir. WRIT PETITION UNDERARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA Appearance: Shri V.K. Mishra, Counsel forthe petitioner. Shri Vinay Pandey, Counsel for respondent No.1. Shri Vinay Harit, Dy. Advocate General for the State/respondent No.2. ORDER (2.5.08.2009) SUNIL KUMAR SINHA.J. (1) Being aggrieved with the order dated 10.03.2006 passed in CMI Suit N0.71-A/2003, by the Civil Judge Class-l, Mungeli District Bilaspur (C.G.), whereby, the right of the petitioner/defendant to file written statement has been closed under Order VIII Rule 10 of the Code of Civil Procedure, the petitioner/defendant has flled this writ petition. r^.^^. :# ^ ••! & ii s a ••^-^"•vs» t. ^.wy 'y .-^~"'~ "•^a: W.P. No.1791/2006 (2) A perusal of the impugned order would show that after flling of the plaint, the matter was listed for hearing on some I.As., including an application filed under Order VII Rule11 of the Code of Civil Procedure. When the said applications were disposed of, the petitioner/defendant was called upon to file written statement, which he could not Tile, therefore, on 15.02.2006, the trial Court observed that if the written statement is not filed on the next date of hearing i.e. 10.03.2006, the right of the petitioner/defendant to file written statement shall be closed under Order VIII Rule 10 of the Code of Civil Procedure. Ultimately, the written statement was not filed on 10.03.2006 and the right of the petitioner/defendant to flle written statement was closed by the triai Court. (3) Learned counsel for the petitioner argued that the trial Court acted in excess of jurisdiction while closing the right of the petitioner/defendant to file written statement. He argued that the matter was fixed for disposal of the interlocutory application , therefore, the petitioner/defendant could not file written statement, and in such situation, the trial Court ought to have granted one more opportunity to the petitioner/defendant. (4) On the other hand, learned counsel appearing on behalf of the respondents opposed these arguments and supported the order passed by the trial Court. He submitted that the learned trial Judge has rightly acted under the provlsions of Order VIII Rule 1 C.P.C. (5) I have heard learned counsei for the parties at length and have also perused the records of the writ petition. (6) Order VIII Rule 10 C.P.C. deals with the procedure, when party fails to present written statement cailed Tor by the Court. It provides that where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same wlthin the time permitted or fixed by the Court, as the case may, the Court shall •.^^..^ -":'sife, *;;, ^^^.^ e^C^i/ ^ s" ? ,i ^ •'.,,„..;" ,5;' W.P. No.1791/2006 pronounce judgment against him, or make such order in relation to the suit as it thinks flt and on the pronouncement ofsuch judgment a decree shall be drawn up. (7) Order VIII Rule 1 casts an obligation on the defendant to fite the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record, though filed beyond the time as provided for. The nature of provisions contained in Order VHI Rule 1 is procedural. tt is not a part of the substantive law and the object behind substituting Order Vill Rule 1, like the above, is to curve the mischief of the defendants adopting dilatory tactics, delaying the disposal of the cases. Therefore, the object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the faimess which is a basic etement of justice cannot be permitted to be buried. This is what the Supreme Court said in the matter of Kallash vs. Nanhlai and otfaere. {200S) 4SCC480. (8) In the present case, much of the time has elap^ in decision of the I.AS., including one filed under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint. This shows that according to the petitioner/defendant, the plaint was to be rejected and perhaps for the said reason, the petitioner/defendant did not choose to file written stafement till the disposal of the application filed under Order VII Rule 11 of the Code of Civil Procedure. However, we may also note that even after rejection of the said application and after passing of the order on 15.02.2006, in which, the trial Court observed that if the written statement is not fited on the next date of hearing i.e. on 10.03.2006, the right of the petitioner/defendant to file written statement shall be closed, the S^&BS- W.P. No.1791/2006 petitioner/defendant did not file written statement on 10.03.2006 and made a prayer for adjournment. (9) But, 1 am of the opinion that in the peculiar facts and circumstances of the case, with a view to provide complete justice to the parties, a last opportunity should be awarded to the petitioner/defendant to file the written statement. (10) Accordingly, the writ petition Is allowed. The impugned order dated 10.03.2006 is set aside and the petitioner/defendant is awarded a last opportunity to file his written statement, which he shall file within a period of 15 days from today, on payment of cost of Rs.500/- to the plaintiff/Counsel for the plaintiff, prior to filing of the written statement. (11) If the plaintiff/Counsel for the plaintiff do rot receive the cost or they deny to receive the cost, it shall be deposited in CCD, which shail be payable to the above persons. __^____— Sdf- Sunil Kumar Sinha Judge shyna