IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2176 of 2006 RAMYADI RAM Versus RAMADHAR BHARATI ----------- 04/ 13.05.2009 Heard both the sides. The petitioner was the defendant in the court below and he appeared in the Suit No. 02 of 2005 on 16.5.2003 and did not file his written statement. Lastly the court passed an order, though very cryptic, on 15.12.2004 that the petitioner shall be dealt with under Order 8 Rule 10 of the CPC, meaning thereby that the petitioner was to face the consequences of not presenting the written statement required by the court within time fixed and as such the decree could be passed without his participation in the suit. The petitioner pointed out that in spite of written statement being not accepted, the plaintiff was allowed to examine the witnesses and thereafter he filed a petition for recalling the order, which was rejected by the impugned order dated 27.9.2006. Two decisions have been placed before me, out of which one is by the Supreme Court in the case of Mr. Sheikh Haji Abdul Khayumsab Vs. Mr. Kumar and others reported in 2006(1) P.L.J.R. 154 (S.C.) in which - 2 - the Apex Court has held that it was open to the court to permit the defendant to file written statement if exceptional circumstances were made out because in adversarial system of administering justice sometimes denied opportunity of participating in the process of justice dispensation is counter productive. The other decision is of this Court in the case of Jai Shankar Mandal Vs. Kailash Prasad Mandal reported in 2005(2) P.L.J.R. 179. In the case decided by this court the time for filing the written statement was extended from time to time while the defendant could not file his written statement neither he could file any petition for review or recall of the order refusing to accept his written statement, but the court in the above background directed the acceptance of the written statement on the ground that issue had not been framed and on that account the hearing was not likely to suffer any loss and further that it was within the ends of justice to have accepted the pleadings of the defendant. It may be pointed out that even if a written statement is not accepted the defendant is not completely out of the court. He may participate in the proceeding, cross - 3 - examine the witnesses and make submissions also on merits of the case by relying upon the admissions or statements of witnesses brought on record through their cross- examination. Merely because a person was not allowed to participate in the proceedings of a suit in spite of his written statement not being accepted, it can not be said that he has no right to be exercised in future for filing the written statement and getting it accepted by the court. The statutory provision which could be held to be discretionary could not be inflexible, it has to be elastic considering the circumstances which could be prevailing around a particular defendant. But, that could not be made the rule. Sometimes the discretion of the court might be granted to a defendant to attend the proceedings, who might have slept with his written statement for many years, i.e., for over two years as has been done by the present petitioner, when no court could be coming to his rescue. I do not find any merit in the present petition. The same is dismissed. DKS/ (Dharnidhar Jha, J.)