IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.600 of 2007 With C.R.No.643 of 2007 --- Gauri Shankar Prasad son of Late Ram Sewak Ram, resident of Mohalla Manpur, Guddar Pandey Lane, P.O. and P.S. Buniyadganj, District-Gaya. -- Defendant-Petitioner (in both the cases) Versus 1. Durga Prasad son of Late Ram Sewak Ram, resident of Mohalla Manpur Guddar Pandey Lane, P.O. and P.S. Buniyadganj, District- Gaya. -- Plaintiff-Opposite Party 1st Set. ( in both the cases) 2. Ashok Kumar S/O Sri Gauri Shankar Prasad, Resident of Mohalla Manpur Guddar Pandey Lane, P.O. and P.S. Buniyadganj, District-Gaya. -- Defendant- Opposite Party 2nd Set. (in both the cases) ----- For the petitioner : Mr. Ashutosh Singh-II, Advocate. (in both the cases) For opposite parties : None. (in both the cases) ---- 04. 08.10.2009 Civil Revision No.643 of 2007 is barred by time. I.A.No.2000 of 2007 has been filed on behalf of the petitioner for condoning the delay in the filing of the said civil revision. Considering the averments made by learned counsel for the petitioner and the statements made in the interlocutory application, it appears that genuine reasons have been shown which prevented the petitioner from filing the said civil revision earlier. Accordingly, this interlocutory application is allowed and the delay in filing of the civil revision is condoned. - 2 - 2. Heard learned counsel for the petitioner in both the cases which are taken up together as the parties are the same and they arise out of the same suit and same points are involved in both the civil revisions. 3. The matter arises out of Partition Suit No.298 of 2003 which was filed by the sole plaintiff-opposite party no.1 for partition of his moiety share in the suit property and for other ancillary reliefs. Thereafter notices were sent to both the defendants, out of whom defendant no.1 was the father of defendant no.2. The petitioner could not give the date on which the summons of the suit was served upon them, but he admitted that defendant no.1 appeared in the suit on 26.06.2004. 4. It further transpires that from 26.06.2004 till 10.12.2004, the defendant did not take any step for filing his written statement and only on 11.12.2004 he filed an application before the court below for granting some time to him to file his written statement along with a medical prescription. This application was rejected by the learned Subordinate Judge-I, Gaya vide his order dated 11.12.2004 which is under challenge before this court in Civil Revision 643 of 2007. 5. It also transpires that in the meantime the suit proceeded and on 07.01.2005 P.W.1 was examined and two months thereafter defendant no.1 filed his written statement on 05.03.2005 along with an application for recall of the earlier order dated 11.12.2004. The said application dated 05.03.2005 filed by the defendant-petitioner has been rejected by learned Subordinate Judge- - 3 - I, Gaya vide his order dated 14.12.2006 which is under challenge in Civil Revision No.600 of 2007. 6. It is not in dispute that the suit was filed by opposite party no.1 in the year 2003, i.e. after amendment of 2002 in the relevant provision of law, namely Order VIII Rule 1 of the Code of Civil Procedure, which lays down that the defendant shall within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 7. In the instant case, the delay in the filing of the written statement is more than 250 days. The same question had come up before this court in case of Smt. Sunita Devi & Ors. Vs. Abdhesh Kumar Sinha @ Kamleshwari Pd. Sinha & Ors., reported in 2005(2) P.L.J.R.482, and this court after considering the relevant provision of law decided as follows:- “24. So far the question of fair play and justice is concerned, it has to be kept in mind that the courts under the Code are courts of equity and there can be various compelling circumstances and myriad situations in which a defendant can be completely helpless in filing written statement within ninety days from receiving summons including natural catastrophes like floods, earthquakes, devastating storms etc. and also man made calamities such as riots etc. There can even be some very compelling personal reasons such as non-availability of any one during the period of serious ailment of the defendant or in case of serious accidents rendering him completely incapable of coming to court and/or sending any one else to - 4 - court. 25. Furthermore, where the cause of justice is at stake the powers of the court are very wide and cannot be limited and hence when the court feels that there were genuine and exceptional circumstances and the cause of justice would suffer by refusing the written statement, it definitely can accept the pleading of the defendant beyond the period of ninety days prescribed in Rule 1 of Order VIII of the Code specially when by exercising the said jurisdiction neither the other side is put to any loss nor any delay is caused to the suit. 26. I may hasten to add here that provision of Rule 1 of Order VIII of the Code has to be strictly adhered to as the filing of the written statement within the period prescribed is the rule, whereas accepting the written statement beyond it should be an exception and is left to the courts judicial discretion, which should be exercised with extreme caution under very exceptional and compelling circumstances only with a view to secure the demands of fair play and justice as per the „Statement of Objects and Reasons‟ of the Amending Act of 2002.” 8. It transpires that the reason for delay in the filing of the written statement as given by defendant no.1 in his application dated 05.03.2005 was that defendant no.1 was ill and there was bleeding from his nose as he was 78 years old. There is only a prescription of the doctor which is dated 09.12.2004 (Annexure-2) on the basis of which he was advised full bed rest for two months, but that prescription merely shows that defendant no.1 fell ill on 09.12.2004, but much before that the period prescribed under Order VIII Rule 1 of the Code of Civil Procedure had expired and hence the said plea was not at all available to defendant no.1. A further plea was taken that after filing vakalatnama on behalf of defendant no.1 his counsel fell ill. There is no material to substantiate the said claim, nor there is anything to show that how much time he spent for recovering from his ailments. Furthermore, defendant no.1 was - 5 - legally entitled to engage another counsel for filing written statement on his behalf especially when his son was also his co-defendant. 9. In the said circumstances, this court does not find any illegality or jurisdictional error in either of the two impugned orders dated 11.12.2004 and 05.03.2005. Accordingly, both the aforesaid civil revisions are dismissed. Sunil (S. N. Hussain, J.)