IN THE HIGH COURT OF_CHHATTISGARH AT BILASPUR W. P. N0. 4-6.S3 /2005 Petitioner/ Defendant M/s. Dhan Laxmi Poultiy Farm Pro. Goutam Kumar Ghosh, S/o. Late Shri Dhananjay Gfeosh , aged about 40 years, R/6. 104, Geetanjali Society, Sector II, Raipur (C.G.) VERSUS Respondents/ Plaintiff ^z^ .^^%/ O^^P"" ^•••-< :^-'^ <fyy '<2<s"y y '^- ^\. Venkateshwara Feed Tradors . Pro. Rajendra Kumar PUlai, Address- Egg Market, Telibandha , G. E. Road, Raipur ( C.G.) Through Special power of attorney holder ShriLukasnath S/oShri N. K. Nath C/o. Venkateshwara Feed 1'radors . Pro. Rajendra Kumar Pillai, Address- Egg Market, Telibandha , G. E. Road, Raipur ( C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA :IB BE IIE3 li »i • an R 'svci-r^wivw, U-rfl<H<l<i,RriWy-< linoi^'TT^F ....A^.pJ^fi,.^.SSS.]o \ 206 aiiisTwR'ii<b aaL'9ii^?rsOTT<p sni9T'ra^ (ijciij<si<d) STOtSR^iteTsn^r <t>i<<[CT<I1l llic»f^ffai<9'(Rrt'^l'f ^ail^Tsii^t 26-9-2005—~ Shri Sachin Singh RajpfJt, counset for the pstitioner. i-1eard learned ooynsel forthe petitioner. The petitioner has preferred this writ petition under Artic!e 227 of the Constltutlon oflndia queslfoning the iegallty, proprietyand correctness of the order datsd 14-9-2005 :th passed by the 5m Additional District Judge, Raipur jn ch/il Suit No.2-B/20p5 wherebythe right of the defendantto fi!e written statementhas bsen cldsed. The impugned order therefore, notice is not being notice is going to further respondenyplaintiffwill be at of this order, if he feels aggrie't The respohdent hsrein] Rs.1,13,985/- against the pef Civil SuitNo.2-8/2005. Perusal of the variousl Tirst tlme on 2-5-2005 iearneti counsel forthe petitlonerappeared and he asked for copies of the docui(iehts. Perusal of the order sheet dated 5-7- |is pen/erse and iliegal on the face of it, (ssued to the respondent, as the issuance of pelay proceeding of the suit. However, pberty to move an appfication for modification \ed. |filed a civii suit fer rscoyery of an amount of |tioner herein and the suitwas registered as order sheets of the suit shows that for the 2005 shows that on that day S.C. Rathors submitted thaf the copiss of the documents have been delivered to him, Thereafted learned counsel for the petitioner herein Mr. he sought an adjournment for filing written stateme'nt. The matter wolsfixed for 25-7-2005. Again he sought adjournment. Tt'iereafter,!)!^ matter was fixed for 10-8-2005 and on that day ateo adjoumment was scjught and the matter was fixed for 23-8-2005. On 23-8-2005, an applicatiot under Order 11 Ru!e 14 read with Order 7 SP/FS/2005-20,000 'a-CT) T<41<110q^t»-rfl'<1<IS,Rc4Wy< ii*iwi g»iT^ 3iit?T!i»i1^ira; aaiT3II^ST**fi<B ^' 3TI^?iqgq; (ijcii^d^) ^200 BTOTSR^lfeTan^T •-^' <ni<if<i<I1i f1*101<ffa'i9'<(u|'(^|'< ^aif^Tan^T Rula 14-A of the C.P.C. was tifed and the rtiattsi way Hxed fui l-9-2005. On 1-9-2005, on account ofldeath of soms counssl the maHer was adjourned and fixed for 14-9-201p5. Perusal of the order daNd 10-8-2005 reveals that on the said date the petitioner hereln was grante|d tlme till 23-8-2005 on payment ofcostof Rs.50/-. On 23-8-2005, writtenlstatsnient was not filed by the petitioner.. However, an apptication on be 11 Rule 14 read with Order 7 was caiied on 14-9-2005, reply the respondent. However, in petitioner herein power of atton of LuKasnath was flled, as th| |ialf of the petitioner was fiied under Order Ruls 14-A ofthe C.P.C.. When the matter lpf this apptication was not filed pn behalf of response to ths application filed by the rey executed by Rajendra Kumar in favour 2 suit was filed by Lukasnath which was challenged by the petitioner hejein in his application that he has no rightto file the suit. As Lukasnath was| the Power of attorney holder, therefore, an application cn behalf of ths p4titioner was filed stating that the power of Attorney musf be filed along ' power of attorney was fiied cj Judge further observed that yith the plaint. In compliance of the same n 14-9-2005. Leamed Additionai District the petitioner hereln was required to flle written statementwithin a peri<jd of30 days as per the amended provision and he has not filed the same| therefore, his right to filewritten statement stands c!osed and now, he has|no right to file written statement. Legrned counsel for (he petitioner submitted that in the first inslance the Court below fell|in error by obsewing that the day to file written statement commencaj from 2-5-2005 because on that day the documerrts were not served uj^on learned counsel for the petitioner herein and he asked for the copiefs. On 5-7-2005, tearned counse! for the SP/FS/2005-20,000 •\j-OTi •^<ii<(icx<^'^lwi<s, RriWy^ 41 *i 1*101 ^'nqp sii^iwR'iicb a2irgn^?r»^to sn^sT'Rip ('i^tgd^) W^ 200 «niiln<ll-itlfc>Yt>'fa^l'(Rt'(^l'< ^srf^qgn^a petitioner herein macie a staiefnent beter6 th6 Court thal uupTBS'-of tha documents were recsived.theilsfore, time to file written statement starts from that day. - He further s ^bmitted that even the suit was filed by Lukasnath ciaiming himself to tjie power of attorney holder and the power of attomey was not flled aion^ raised on 23-8-2005 and an apit 11 Rule 14 read with Order 7 Rute-14 ofthe C.P.C., and in compliance of that app'ication of the petitione| 14-9-2005, andon that day his i] !n the drcumstences, w| with the pialnt, therefore, objection was ilicatjon to that effect was filed under Order r Lukasnath filsd his powsr of attorney on ightto filewritten statementwas closed. ithout entering into controversy regarding fliing of the power of attomey, itjls admitted position that on the flrst date of htearing when learned counsel|for the petitioner herein appeared before the Court below, It appears thafl the documents were not served upon him, therefore, he asked for ttie co|pies of the documents. Ultimatsiy, those copies were served upon himj Learned counssl for the petitioner herein made a statement on 5-7-200$ that copies of the doeuments have been served upon him. Therefore, tii 2005, as the complete docun petitioner before that date, ther| stetement. Order 8 Rule 1 of the (;.P.C. envisages that 'the defendant shall, within thirty days from the dat' ne to file written statement starte from 5-7- lents were not served on counsei for the sfore, he was not in a position to file written ^ of service ofsummons on him, present a written statement pf his defenc^ Provlded thatwhere the| defendant fails to file the written stetemenS within the said period of thirty <|lays, he shall be allowed to file the same on such other day, as may be |specified by the Court.for reasons to be SP/FS/2005-20,000 \d-oq 'oxiicxf, y-^Wld, Rrii«y^ *tii<?iii a»*(T^ 3IT^$iq3^(ljc|tj<st<;) ^200 3II^?TTTR-1W a2{r3ii^?T**<i* s^irwB^tan^n •f^t racordad in Wfltlng, butwhich the Hon'ble Apex Court in th] others reported in 2005 AIR ^ piovlstons of Orfier 8 Ruie •BKifnJl'i iiini'^'fa'^1 'iRl'ttjl't ^3ff^tSII$?I tehall «ulbu la&si UuilTiiiieiy days fnsm the date ofservics of summons.' |The said provision has been interpreted by statement are directory aW not mandatory. In exceptiona! cases considering ihe circiimstance, oi defendant he was nof ab ^ matter of Kailash Versus Nanhku and 'CW 2348 in which it has been held that 'the Mng tSme schedule tor M!ng of wrtlten i put forwaKi by Qie defendant ifttw Court reachestoihe conclusion th^ on sccount of raasons beyond ffiiecontro! te fo ®ew/itfen atatement then the Couri shouid extend w time beyo^id 90 days.' Swme view again reiterated by the Hon'ble Apex Court iji the matter of Satem Advocate Bar Association, Tamil Nadu V.IUnion of India reported in 2005 AIR SCW 3827. Therefore.for the fir^t time documents were not served upon learnsd counse! for the petititj on 5-7-2005 and that 90 days'l .ner and he mads a statement to that sffect time was notexpired tiil 14-9-2005. Moreover, learned coutiset for the peffioner makes a statoment at the Bar that written statemenj; has alrsady been fiied on 22 September 2005 with an appiteation to ta|<e written statement on record, butthesame ftas been rejected by thetriaiipourt. In view of the above i^cts, tearned triai Court withoutconsidering the facts mentioned above respondent was not able to fi| aboutflling of written statemei and without considering the fact that wrfiy ewritten statement in the first instance within 90 days from 5-7-2005 and b^yond that. The Court oyghtto have decided it by the petitioner herein consideringall the above aspects which has npt|been considered in this Case. Therefore, the impugned order, prima facie,^ iltegal which is liable to be set aside. SP/FS/2006-20,000 •B'B a6iis;3 y-cq •^eiiwcw. WT^tl'SS, Kv'lW^'i te *11*1«1^'TT^ W^ 200 an^9T'raq?(^gqs) SIT^TWR-licb ?RIT3IltCT(p«li<p s'RitiiR^Tfferssf^v •s^ <Riqfc»<Ill*<l*lwY*t"l^><II "(luK^I'! ^aif^Tsii^iT In tna resuit, me wm peni set aside. The trial Court is dirs. extension oftime or otherwisefor Ban/e :|on feAll6W6d andthy'impuyiitsd uidu is ^ed to consider above aspecte and pass the order in accordance with lavf after hearing both the parties regarding [fiiing the written statement. M.(W.)P. No.3780/2005 and I.A. In vlew of this orde| No.8374/2005 stand disposed ofj Parties are entitted forcert|fied copy ofthis ordertoday itself. Sd/- L.C.Bhadoo judge •Sff/FS/2005-20,000 ('<•' ^