CRP 83/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY The order dated 15.12.2010 passed by the learned Munsiff No.3 in Misc(J) Case No.222/2010 registered on an application for recalling the order dated 24.08.201 0, by which the connected Title Suit No.138/2010 had been fixed for ex parte hea ring is in challenge in the instant petition. I have heard Mr. B. Sinha, learned counsel for the petitioners and Mr. K.U. Ahme d, learned counsel for the opposite party. In the aforementioned suit filed by the opposite party, summons were served on t he petitioners on 31.05.2010, whereafter, they entered appearance on 18.06.2010 and prayed for time to file their written statement. The prayer was allowed and the suit was next fixed on 19.07.2010 for the written statement of the petitione rs-defendants. On that date, as well the petitioners-defendants did not file the ir pleadings and on their prayer for further time, the suit was fixed on 11.08.2 010. As they (petitioners-defendants) could not file their written statement, a s prayed for on their behalf, the suit was fixed on 24.08.2010. On that date, th e petitioners-defendants were absent without steps, for which the learned court below passed an order directing that the suit would proceed ex parte against the m fixing 27.09.2010. It was thereafter, that on 04.10.2010 an application was f iled by the petitioners-defendants along with their written statement with a pra yer to vacate the order dated 24.08.2010 and to accept their pleadings. By the impugned order, this prayer has been rejected. Mr. Sinha has argued that as on 24.08.2010 the delay of 90 days prescribed by Or der - 8 Rule- 1 of the Civil Procedure Code (hereinafter for short referred to a s the Code) for submission of written statement by the defendant in the suit had not expired (having regard to the date of the service of summons on them i.e. 3 1.05.2010) the suit could not have been fixed for ex parte hearing as done. Fur ther as the petitioners-defendants could not be held responsible for the default of their learned counsel entrusted with the brief, the learned court below ough t to have allowed the prayer for recall of the order dated 24.08.2010 and accept ed their written statement. Mr. Ahmed, on the other hand, has contended that as the petitioners-defendants h ad remained without steps on 24.08.2010, their plea based on 90 days is not tena ble at all. They having persistently failed to file their written statement in spite of several opportunities given, the learned court below was perfectly righ t in passing the impugned order. Upon hearing the learned counsel for the parties and on a consideration of the f acts on record, I am of the view in the interest of justice, that the impugned order ought to be interfered with. That the petitioners have not been able to f ile written statement within a period of 90 days from the date of service of sum mons in the suit on them is apparent on the face of the record. Though, they hav e contended that the default, in fact had been on the part of the learned conduc ting counsel, this court for obvious reasons refrains from making any comment th ereon. Be that as it may, the fact remains that on 04.10.2010 the petitioners-defendant s while making a prayer to recall the order dated 24.08.2010 had also submitted their written statement. In the above view of the matter, having regard to the singular facts and circumstances of the case, it is considered just and appropri ate to interfere with the impugned order. Ordered accordingly. As the petitioners-defendants cannot be given a clean chit, it is considered exp edient that they be directed to deposit cost for their defaults contributing to the delay in the suit, which this court assesses to be at Rs.1,000/-. The petit ioners-defendants would deposit this amount within a fortnight herefrom before t he learned court below, whereupon, only their written statement would be taken o n records. The parties would appear before the learned court below on 25.11.201 1 to take further order(s). The learned court below is requested to expedite th e disposal of the suit, in accordance with law. The petition is allowed in the above terms. No costs.