HiGH COURT OFCHHATTISGH AT BILASPUR (Hon. W!r. Justice Pritinker Diwaker) ;iTI PETITSONERS Defendants 1. 2. 3. 4. Laxman Singh, S/o. Kunjai Singh, Aged about 25 year^, Lal Singh, Son of Kunjal Singh, aged about 20 years, Bund Kunwar, W/o. Narinda, aged about 45 years, No. 1 to 3 are Wo. Village Jarondha, P.S. Khadgawan, Tahssl Manendragarh, District Korea (C.G.) Sem Bai, D/o. Kunjai Singh,aged about 19 years, Rio. \fll!age Khadgawan, Para Gajmarva, P.S. Khadgawan, Tahsil Manendragarh, District Korea (C.G.) VERSUS RESPONDENTS PSaintsffs 1. aged about 35 years, Jagan Singh,S/o. Bhuwal, agedabout 40 years, Jagan Singb, Sto. Bhuwal;aged about40 years, Both R/o. Viitege Jarondha, P.S. Khadgawan, Tahsil Manendragarh, Disfrict Korea (C.G.) Mr. Vishnu Koshta counsel for the petitioners. None for the respondents/plaintiffs, though served. WRIT PETITiON UNDER ARTICLE 2270F THE CONSTiTUTION OF IND!A ORDER (08.04.2009) The chalienge in this wrtt petition is to the order dated 01.0.8.2008 passed by Civil Judge Class II, Chirmiri in Civil Suit No.39-A/2005 bywhich the application filed by the petitioners under Section 151 ofthe Code ofCivil Procedure has been dismissed. in the said appfication the petitioners had prayed for permission to fiEe writtenstatement. By order dateo' 04.12.2006 (Annexure-P-2) the - 2 court beiow closed the right of petitioners/defendants to file their written statement. 2) Contention of counsel for the petitioners is that on 27.09.2006 the case was fixed for appearance'bf the parties but on the sald date ths advocates of Manendragarh Civil Court were on strike and therefore counsel for the petitioners couid not appear. Since the advocates were on strike, ths petitioners appeared in the court personalfy and they were given the next date being 06.12.2006. A slip to this effect was issued by the eoncerned court reader. According to the petitioners though the date was given as 06.12.2006, it appears that the case was iisted on 27.11.2006 pursuantto the order dated 27.09.2006. On the said date the case was adjoumed to 04.12.2006 as a iast opporturiityto the petitioners for filing their written statements. Record also shows that on 04.12.2006 no written statement was filed on behalf of the petitioners/defendants and therefore, their right todo so was closed by the court below. Thereafter the petitioners moved an applieation under Section under Seetion 151 of the Code ofGivil Procedure for permission to fi!e their written statement which has been rejected by the impugned order. 3) Counse! for the petitioners submits that admitfedly the fault lies on the petitioners but the sufRcient cause was assigned by them in thecourt below justifying their absence and the courtbetow .ought to have permitted the petitioners to file their written statement. 4) On request being made, Mr. Vivek Sharma Panei Lawyer rendered assistance to this court. 5) The court below by the impugned order rejected the apptication mainly on the ground that under Order 8 Rule 1 of tHe <.. / Code of Civil Procedure, written statement ought to have been filed within the stipulated time and the court does not have the power to extend the same. The order says that no justifiable reasons have been assigned by the petitionere as to why the written statement was not filed on the earlier date given by the Court. 6) On the other hand, Mr. Sharma support the order impugned. 7) Heard counsel for the petitioners and R/lr. Vivek Sharma, PL who assisted this Court. 8)- Counsel for the petitioners placed reliance on the decision of the Apex Court in the matter of Smt. Rani Kusum v. Smt. Kanchan Devi & others in which it has been hetd that amendment made to order 8 Rule 1 of the Code of Civil Procedure does not completely take away power of the Court to extend time for filing written statement beyond time specify in order 8 Rule 1. However departure there from shail be by way of exception He further placed reliance on the decision oftheSupreme Court in the matter of Salem Advocate Bar Association, Tamii Nadu v. Union oflndia in which it has been held as under :- "16. It is also to be noted that though the power of theCourt under the proviso appended to Rule 1 of Order Vli! is circumscribed by the words - "shall not be later than ninety days" but the consequences flowing from non-extension of time are nof specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same js not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negativeform." 'AIR 2005 SC 3304 '-'2005 AIRSCW 3827 iSl l i Kk • 1 Jyo -</- 9) Counsel for the petitioners submits that till date the evidence of the defendants has not been recorded and the case is fixed for recording of evidence on 24.04.2009 , therefore, even if thispetition is allowed, no prejudice would be caused to the piaintiffs and they wii! get sufRcient opportunity of leading their evidence based on their pleadings and the pleadings of the defendants. 10) Argument advanced by counsel for the petitioners appears to have sufficient force. Accordingly in the light of th®aforesaid judicial pronouncement of the Apex Court, this court is of the considered view that orders dated 04.12.2006and 01.08.2008 are liable to be set aside. Thus, the petition is allowed and the orders dated 04.12.2006 and 01.08.2008 are set aside. In the interest of justice the petitioners are permitted to fiie their written statement positively by the next date of hearing. The written statementso filed shall be taken on record. 1 11) It is stated that as thesuit is pending since 2005, a direction may be issued to the court below to dispose of the same expeditiousiy. Prayer seems to be reasonable. Accordingly, the court below is directed to dispose of the suit as eariy as possible preferably within a period of six months from the next date of hearing. ]t is expected that the parties will co-operate the Court for early disposal offhesuit. Petitioners/defendants are direcfed fo pay a cost of Rs.1,000/- to the plaintiffs in the court below. "^w' ^•-^L