IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 17258 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.6104/2010 IN OS.143/2009 of I ADDITIONAL MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER(S): PLAINTIFF ------------------------ SHAJUMON, AGED 32, S/O. CHELLAN, ELIZA COTTAGE, PUTHENVILA, AYIRA, ARAYOOR DESOM, CHENKAL VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): COUNTER PETITIONERS/DEFENDANTS --------------------------------------------- 1. MADHU, S/O. KOCHU CHERUKKAN,PADIPPURA VEEDU, PADAPARAKKAL VILA, JNARAKKALA, ERICHALOOR DESOM, KARODE VILLAGE. 2. SAILAS, AGED 40, S/O. APPAVU NADAR, VIRALI VILA VEEDU, VADOORKONAM, AYIRA DESOM, KARODE VILLAGE. 3. MARIYA DAS, AGED 40, CHANKILI NADAR, KUZHINJAM VILA VADOORKONAM, AYIRA, KARODE VILLAGE. 4. ALFRED, S/O. JOVAN, MARY BHAVAN, VADOORKONAM KARODE VILLAGE. 5. DEVANESSAN, S/O. JOVAN, BINU BHAVAN, RESIDING AT DO-DO- 6. BINU MON, S/O. DEVASESSAN, RESIDING AT DO-DO- 7. SUMA ALIAS MABEL BABY, D/O. ROSAMMA, T.R.SADANAM PAVARATHUVILA ARAYOOR, CHENGAL VILLAGE. 8. JAPAMONY, BAIJU BHAVAN, CHURAKUZHI, VADOORKONAM, AYIRA, KARODE VILLAGE. 9. BAIJUMON S/O. JAPAMONY. OF DO-DO- ADV. SRI.G.P.SHINOD FOR R1TO9 SRI.RAM MOHAN.G. FOR R1TO9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.17258/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT DATED 16.2.2009 IN OS NO.143/2009 OF ADDL.MUNSIFF I, NEYYATTINKARA EXT.P2 TRUE COPY OF WRITTEN STATEMENT DATED 27.10.2009 OF DEFENDANTS 4 AND 7 EXT.P3 TRUE COPY OF WRITTEN STATEENT DATED 10.11.2009 OF DEFENDANTS 1, 2, 3, 5,6, 8 & 9 EXT.P4 TRUE COPY OF IA NO.6104/10 IN OS 143/2009 DATED 11.11.2009 EXT.P5 TRUE COPY OF ORDER DATED 3.3.2010 IN IA 6104/10 IN OS 143/2009 OF ADDL.MUNSIFF COURT-I, NEYYATTINKARA EXT.P6 TRUE COLPY OF B DIARY IN OS 143/2009 OF ADDK.MUNSIFF COURT-I, NEYYATTINKARA //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.17258 of 2010 -------------------------------------- Dated this the 5th day of August, 2010. JUDGMENT This Writ Petition is filed by the plaintiff challenging Ext.P5, order on I.A.No.6104 of 2010 in O.S.No.143 of 2009 of the court of learned Additional Munsiff-I, Neyyattinkara. Contention of petitioner is that respondents/defendants filed written statements beyond the period of 90 days from date of service of summons on them without assigning any reason for the delay and the learned Munsiff has not recorded any reason for acceptance of those written statements beyond the said period. Petitioner in the circumstances filed Ext.P4, application to reject the written statements but, learned Munsiff has dismissed that application by Ext.P5, order for the reason that issues are already framed. Learned counsel has placed reliance on a decision of the Supreme Court in Mohammed Yusuf v. Faij Mohammad and others [(2009) SCCR 331] where it is stated that though it is within the power of court to accept written statement filed beyond 90 days of service of summons it must be for cogent reasons to be recorded. Learned counsel for the contesting respondents argued that it is not clear from the copy of B diary produced by the petitioner when summons were served on the respondents/defendants. But it is seen that on 20.09.2009 court granted time to defendant Nos.4 and 7 till 27.10.2009 to file written statement and accordingly written statements were filed. Learned counsel placed reliance on the decision in Shaikh Salim Haji Abdul WP(C) No.17258/2010 2 Khayumsab v. Kumar and others [(2006) 1 SCC 46] and in particular observations in paragraph Nos.18 to 20 (at page No.53). According to the learned counsel even if it is assumed that court below wrongly has granted time to defendant Nos.4 and 7 till 27.10.2009 and accordingly, written statements have been filed, petitioner has no reason to complain. 2. Decisions on the point say that though under Order VIII Rule 1 of the Code of Civil Procedure (for short, “the Code”) an outer limit of 90 days is fixed in the matter of extending the time for filing written statement from the date of service of summons that provision is only directory. Decision relied on by learned counsel for petitioner would however show that grant of time beyond the time stipulated in Order VIII Rule 1 of the Code is not automatic and it should be sought for and granted for cogent reasons to be recorded. But I do not find any observation in the said decision to the effect that it requires an application on the part of defendants seeking permission to file written statement beyond the period of 90 days. What is required is that the court has to record reasons in writing. Unfortunately copy of B diary in this case does not show when summons was served on the contesting defendants to decide whether written statement was filed within 90 days. There is also no statement in the B diary as to for what reason written statements were accepted assuming that it was filed beyond the period of 90 days. But, it is not as if for that reason written statements filed by the defendants are to be rejected. I also find from Ext.P5, order that Ext.P4, application was rejected for the mere reason that issues have been framed. WP(C) No.17258/2010 3 Learned Munsiff has not adverted to the question whether there was sufficient reason for permitting defendants to file written statements beyond the period prescribed in Order VIII Rule 1 of the Code (if it were so). In view of that, I am persuaded to think that the matter requires reconsideration. Hence Ext.P5, order cannot be sustained. I also make it clear that it is open to the defendants concerned to assign reasons for not being able to file written statements within the period stipulated in Order VIII Rule 1 of the Code in case the same were filed beyond that period. In case any application is filed or, sufficient cause is otherwise shown learned Munsiff shall consider the same along with Ext.P4, application and pass appropriate orders. Resultantly this Writ Petition is allowed and Ext.P5, order is set aside. Ext.P4, application is remitted to the court of learned Additional Munsiff-I, Neyyattinkara for fresh consideration in the light of the observations made above and Order VIII Rule 1 of the Code with opportunity to the defendants to show reasons for filing the written statements beyond the period prescribed in the said provision in case it was filed beyond the said period. THOMAS P.JOSEPH, Judge. cks