CRP 296/2006 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY The defendant Nos. 1 to 12 in Title Suit No. 38/2004 presently pending i n the court of the Civil Judge (Senior Division), Dhubri, have filed the present petition under Article 227 of the Constitution of India challenging the order d ated 10.3.2005 passed by the learned Judge refusing to vacate the order passed o n 2.12.2004 to proceed ex parte against them and also refusing to accept the wri tten statement filed on 17.1.2005. The learned Judge has refused to accept the written statement filed by t he present petitioners on the ground that the same was filed beyond the time all owed under Order 8 Rule 1 CPC i.e. beyond 90 days. For the same reasons the lear ned court below also has refused to vacate the order dated 2.12.2004 to proceed ex parte against the present petitioners though it has noticed that the petition er No. 1 (who subsequently died during the pendency of the revision petition and his legal heirs have been substituted) was taking steps in the case on behalf o f the defendant Nos. 2 to 12 also and was seriously ill and as such bed ridden. Mr. Sarkar, learned counsel for the petitioners has submitted that the g rounds on which the learned court below has refused to vacate the order to proce ed ex parte as well as to accept the written statement filed beyond the period o f 90 days is not sustainable in law as the learned court below has proceeded wit h assumption that the written statement filed beyond the period of 90 days under no circumstances can be accepted. It has been submitted that it is evident from the impugned order passed that the predecessor-in-interest of the present petit ioner No. 1, who was the defendant No. 1 in the aforesaid suit was taking all th e required steps on behalf of the defendant Nos. 2 to 12 and he was seriously il l and as such was bed ridden which fact has not been disbelieved by the learned court below and as such ought to have accepted the written statement filed after recovery of the predecessor-in-interest of the petitioner No. 1 from illness. The respondent namely Taiyab Khan has not entered appearance. It appears from the record that notice was issued initially by registere d post with A/D on the said respondent on 6.5.2005 in the address given in the p laint filed in Title Suit No. 38/2004 where he is the plaintiff. More than 30 da ys have elapsed from the date of issuance of such notice and the A/D card has no t returned. It also appears that pursuant to the order dated 5.10.2010, the peti tioners tried to serve notice on the said respondent by dasti, which, however, h as been refused to be accepted by the said respondent as reflected in the averme nts made in the affidavit filed by the present petitioners on 11.1.2011. The fur ther proceeding of the suit has also been stayed by this Court vide order dated 1.4.2005. The respondent being the plaintiff naturally, therefore, has the notic e about the present proceeding. It appears from the impugned order dated 2.12.2004 passed by the learned court below that due to failure on the part of the defendant Nos. 1 to 12 to ap pear, the order was passed on 2.12.2004 to proceed ex parte against those defend ants. The present petitioners, thereafter, filed the application praying for vac ating the ex parte order. In the meantime, the written statement was also filed by the present petitioners with the prayer for accepting the same. The said pray er has been rejected basically on the ground that the court has no power to exte nd the period of 90 days as stipulated under Order 8 Rule 1 CPC fixed for filing the written statement by the defendant. The provision of the CPC is procedural and not the part of substantive l aw. The rules of procedure are handmaid of justice and its object is only to adv ance the cause of justice and not to deny the opportunity to the parties to cont est the proceeding. The provision of the CPC should not be construed so as to le ave the court helpless in extra ordinary situation. (Rani Kusum v. Kanchan Devi & ors. reported in 2005 AIR SCW 3985). By the time it has been settled by the Apex Court that the court is not powerless to accept the written statement even after the expiry of 90 days as st ipulated under Order 8 Rule 1 in exceptional circumstances the written statement filed beyond such period of 90 days of service of summons can be accepted. In the instant case, it is evident from the impugned order dated 10.3.20 05 that the predecessor-in-interest of the petitioner No. 1 was taking all the r equired steps on behalf of petitioner Nos. 2 to 12 in the aforesaid suit and the necessary steps for appearance despite service of summons could not be taken be cause of the fact that the predecessor-in-interest of the petitioner No. 1 was s eriously ill and as such bed ridden. The said position has not been disbelieved by the learned court below. Order 9 Rule 7 CPC empowers the court to set aside the order to proceed ex parte against the defendants provided the defendant on the next date fixed ap pears and assigns good cause for his previous non appearance. As discussed above, the petitioners filed the application under Order 9 Rule 7 CPC contending that the predecessor-in-interest of the present petitioner No. 1, who was taking all the required steps on behalf of the petitioner Nos. 2 to 12 also, could not take the required steps and appear on 2.12.2004 because o f his illness. The said circumstance is the good cause for his non-appearance on 2.12.2004. Such contention of the petitioner having not been disbelieved by the learned court below, the learned Judge, ought to have vacated the order dated 2 .12.004 directing proceeding of the suit ex parte against the defendant Nos. 1 t o 12 which has not been done, despite demonstration of good cause by the petitio ners for their non appearance on 2.12.2004. As discussed above the petitioners have also filed their written stateme nt although beyond 90 days. The predecessor-in-interest of the petitioner No. 1 being seriously ill which was the cause given in the application praying for acc eptance of the written statement filed belatedly, and the said version having no t been disbelieved, the same ought to have been accepted, as the law permits the court to accept the written statement filed belatedly provided exceptional circ umstances exist. Serious illness of the predecessor-in-interest of the present p etitioners, which prevented him from taking steps and filing the written stateme nt, definitely constitute special circumstance for acceptance of the written sta tement filed belatedly. That being the position, the impugned order dated 2.12.2004 passed by th e learned court below to proceed ex parte against the present petitioner as well as the order dated 10.3.2005 are set aside. The learned court below is directed to accept the written statement filed by the present petitioners and to proceed to decide the suit in accordance with law. The petitioners are directed to appear before the learned court below on 21.2.2011. The learned court below thereafter shall issue notice to the opposit e party since he is not represented before this Court. The civil revision petition stands allowed. No cost.