IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).NO. 24814 OF 2010(O) ------------------------------------------- AGAINST THE ORDER IN IA.1041/2010 IN OS.265/2009 OF ADDL.SUB COURT, PALAKKAD .................... PETITIONER(S): ---------------------- SAHADEVAN, S/O.MURUKAYI, AGED 45 YEARS, RESIDING AT VARIYAMADOM, ERATTAKULAM, PALAKKAD TALUK & DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI RESPONDENT(S): ------------------------ STATE BANK OF INDIA, MERCY COLLEGE BRANCH, REP.BY ASST.GENERAL MANAGER, RASMECCC, PALAKKAD-1. BY ADVOCATE SHRI P.V. SURENDRANATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24814 of 2010 -------------------------------------- Dated this the 10th day of August, 2010. JUDGMENT Standing counsel takes notice for respondent. 2. This Writ Petition is in challenge of Ext.P4, order as per which learned Sub Judge has dismissed Ext.P3, application to receive written statement filed by petitioner/defendant No.3 after 90 days of date of service of summons on petitioner. It is contended by learned counsel for petitioner that Ext.P3, application has been dismissed for untenable reasons without referring to the grounds stated in the affidavit. 3. Respondent filed a suit against petitioner and two others for recovery of money and on 28.10.2009 petitioner entered appearance in the court below. Court posted the case for written statement on 11.02.2010. That day petitioner sought time to file written statement. But learned Sub Judge recorded in the order sheet that “no Written Statement filed by D3 and SS against D1 and D2 and return of summons” and posted the case to 23.03.2010. In the meantime petitioner filed Ext.P2, written statement along with application to receive the same. That application was posted for counter and enquiry on 05.07.2010 and on 30.07.2010 learned Sub Judge has dismissed Ext.P3, application vide Ext.P4, order which is under challenge in this Writ Petition. WP(C) No.24814/2010 2 4. No doubt, when a party to the proceeding seeks permission to file written statement beyond the time prescribed under Order VIII Rule 1 of the Code of Civil Procedure (for short, “the Code”) he is bound to show cogent reason. What exactly cogent reason is should depend on facts of each case. Learned Sub Judge observed that no tenable ground is raised in Ext.P3, application and hence the application is dismissed. I have gone through a copy of affidavit wherein it is stated that since petitioner was laid up due to fever he could not file written statement within time. 5. It is contended by learned counsel for respondent that no medical certificate is produced to show that petitioner was laid up. True, no such medical certificate is produced. But it is open to the court to receive evidence by affidavit as well. I find no reason to think that statement in the affidavit in support of Ext.P3, application is not true. There is no reason that petitioner should willfully not file written statement within the prescribed time. A further fact to be noted is that steps against defendant Nos.1 and 2 were not even complete on the date of dismissal of Ext.P3, application. It has been held that provision regarding time frame under Order VIII Rule 1 of the Code is directory. Having regard to the facts and circumstances I am inclined to think that learned Sub Judge should have allowed Ext.P3 application. WP(C) No.24814/2010 3 Resultantly this Writ Petition is allowed and Ext.P4, order dismissing Ext.P3, application is set aside. Ext.P3, application is allowed. Learned Sub Judge shall receive the written statement filed by petitioner/defendant No.3 on file and proceed with the suit as provided under law. THOMAS P.JOSEPH, Judge. cks