IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.342 of 2007 Shiv Bahal Yadav S/o Late Pujan Yadav, Resident of village Mauza Tajpur (Purab Tola), P.S. Manjhi, District Saran. ………………………...Defendant-Petitioner. Versus 1. Sri Pati Nath Mohadeo through Raj Kishore Narayan Sinha. 2. Raj Kishore Narayan Sinha S/o Raj Narayan Sinha, R/o Chhatradhani Bazar, P.S. Bhagwan Bazar, District Saran. 3.Jay Prakash Dubey S/o Keshav Dubey Pujari, Sri Pati Nath Mahadeo, resident of village Mauza Tajpur, P.S. Manjhi, District Saran………………… ……..Plaintiffs-Opposite parties. For the petitioner :Mr. Anant Kumar Bhaskar, Advocate. For the opposite parties :Dr. Alok Kumar Sinha, Advocate. ----------- 10/ 13.01.2010 Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. This civil revision has been filed by defendant- petitioner challenging order dated 19.01.2007 by which learned Subordinate Judge-VI, Saran rejected his prayer for accepting his written statement in Title Suit No.175 of 2004. 3. The said suit was filed by the opposite parties for declaration of their title with respect to the suit land and for possession as well as for other reliefs. In the said suit summons were sent to the defendant-petitioner who appeared through vakalatnama in the suit on 10.09.2004 and on his prayer one month time was granted to him for filing written statement vide order dated 16.10.2004 and when even then written statement was not filed, one month further time was granted to him for filing written statement on the condition of depositing cost of Rs.200.00 vide order dated 23.11.2004. 2 4. It transpires that within the aforesaid time neither any written statement was filed nor even the cost was deposited by the defendant-petitioner. Thus the court had no option but to fix the suit for ex-parte hearing vide order dated 25.07.2006 accepting the issues suggested by the plaintiffs, whereafter hearing of the suit started and PW.1 was examined on 17.10.2006 and PW.2 was examined on 09.11.2006. It further transpires that on 11.12.2006 when PW.3 submitted his examination-in-chief on affidavit, the defendant filed an application on 11.12.2006 for allowing him to file his written statement. The said application has been rejected by the learned court below vide its impugned order dated 19.01.2007. 5. Learned counsel for the defendant-petitioner vehemently challenges the aforesaid order of the learned court below stating that the defendant-petitioner is 65 years old and was ill for two years and had entrusted the court work upon a Karpardaz due to which the written statement was not filed within the prescribed time. Learned counsel for the defendant-petitioner relies upon two decisions of the Hon‟ble Apex Court, in case of Kailash vs. Nanhku and Ors., reported in 2005(3) PLJR (SC) 241 as well as in case of Shambhaji & Ors. vs. Gangabai & Ors., reported in 2009(1) PLJR (SC) 286. He submits that according to the said decisions of the Hon‟ble Apex Court, the court had full authority to enhance time in the aforesaid facts and circumstances, but it failed to exercise its jurisdiction. Learned 3 counsel for the petitioner also relies upon two decisions of this court in case of Mritunjay Srivastava @ Mritunj vs. Sabita Pandey & Anr., reported in 2010(1) PLJR 176 as well as in case of Chulhan Yadav vs. Ram Bhajan Yadav, reported in 2010(1) PLJR 263. 6. After hearing of the parties and after perusal of the provisions of law as well as the case laws mentioned above, it is quite apparent that by amendment of the Code of Civil Procedure (hereinafter referred to as „the Code‟ for the sake of brevity) in the year 2002 the provision of Order VIII Rule 1 prescribes that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of 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. The Hon‟ble Apex Court in the aforesaid decisions had specifically held that although the said provision is not mandatory in nature, but it is a rule which should be strictly adhered to and only in very exceptional circumstances the defendant should be allowed to file his written statement beyond the period prescribed in the said rules. This aspect of the matter is quite apparent in the decisions of the Hon‟ble Apex Court in case of Kailash vs. Nanhku (supra) as well as in case of Shambhaji 4 vs. Gangabai (supra). 8. So far the above mentioned decision of this court in case of Mritunjay Srivastava vs. Sabita Pandey (supra) is concerned, it had been specifically held that the court had discretion in appropriate cases for sufficient reasons to be shown to accept the written statement of the defendant beyond the period prescribed by Order VIII Rule 1 of the Code. So far the other decision of this court in case of Chulhan Yadav vs. Ram Bhajan Yadav (supra) is concerned, the said matter had arisen out of an order of the trial court which had accepted the written statement beyond the period prescribed considering the extreme circumstances of that case. It may be noted that in both the aforesaid two cases, the earlier decision of this court in case of Smt. Sunita Devi and others vs. Abdhesh Kumar Sinha @ Kamleshwari Pd. Sinha & Ors., reported in 2005(2) PLJR 482 were not cited by any of the parties in which this court had elaborately dealt with the said amended provision of Order VIII Rule 1 of the Code as well as the relevant case laws and had passed its order as follows:- “24. So far the question of fair play and justice is concerned, it has to be kept in mind that the courts under the Code are courts of equity and there can be various compelling circumstances and myriad situations in which a defendant can be completely helpless in filing written statement within ninety days from receiving summons including natural catastrophes like floods, earthquakes, devastating storms etc. and also man made calamities such as riots etc. There can even be some very compelling personal reasons such as non-availability of any one during the period of 5 serious ailment of the defendant or in case of serious accidents rendering him completely incapable of coming to court and/or sending any one else to court.” “25. Furthermore, where the cause of justice is at stake the powers of the court are very wide and cannot be limited and hence when the court feels that there were genuine and exceptional circumstances and the cause of justice would suffer by refusing the written statement, it definitely can accept the pleading of the defendant beyond the period of ninety days prescribed in Rule 1 of Order VIII of the Code specially when by exercising the said jurisdiction neither the other side is put to any loss nor any delay is caused to the suit.” “26. I may hasten to add here that provision of Rule 1 of Order VIII of the Code has to be strictly adhered to as the filing of the written statement within the period prescribed is the rule, whereas accepting the written statement beyond it should be an exception and is left to the courts judicial discretion, which should be exercised with extreme caution under very exceptional and compelling circumstances only with a view to secure the demands of fair play and justice as per the „Statement of Objects and Reasons‟ of the Amending Act of 2002.” 9. From the consideration of the aforesaid provision of law and the case laws in the facts and circumstances of the instant case, it is quite apparent that the reason given by the petitioner for delay in filing of the written statement was not at all justified, as the petitioner is only 65 years of age and there is nothing to show that he was suffering from any serious ailment for such a long period of two years. Furthermore, the petitioner had himself appeared through vakalatnama in the suit on 10.09.2004 and took one month time on 16.10.2004 to file his written statement and again on 23.11.2004 took further time of one month for filing his 6 written statement which prayer was allowed on the condition of depositing cost of Rs.200.00. The defendant-petitioner neither filed his written statement within the said period nor even deposited the cost and only after more than two years when evidence of the plaintiff was at closing stages he had filed his application for accepting his written statement. Thus the learned court below has rightly come to the conclusion that the attitude of defendant-petitioner was not bonafide and he was intentionally not filing his written statement nor was he complying the order of the trial court. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the learned court below nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. harish/ ( S. N. Hussain, J. )