CMP No. 1954 of 2025 Page 1 of 5 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1954 of 2025 An Application under Article 227 of the Constitution of India. Lejamudhin Saha …. Petitioner -versus- 1. Begum Bibi (since dead) 1(a) Sk. Taher Mahammad 1(b) Sk. Dosa Mahammad 1(c) Kabela Bibi …. Opposite Parties Advocates appeared in this case through Hybrid Mode : For Appellant : Mr. Gyanendra Chandra Swain, Advocate For Respondent : CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO .……………………………………………………………………… Date of Judgment: 09.01.2026 ……………………………………………………………………….. Savitri Ratho, J. This CMP has been filed challenging the order dated 11.02.2025 passed by the learned Civil Judge (Senior Division), Bhadrak in C.S. No. 1302 of 2023 setting aside the ex-parte order and accepting the written statement filed after closure of the plaintiff’s evidence. 2. Mr. Swain, learned counsel for the Plaintiff-Petitioner submits that at the time of filing of the suit in the year 2023, the plaintiff was aged about 83 years and in the meanwhile due to old age p. 2 p. 2 ailments, she has become bedridden, so the defendant had deliberately tried to delay disposal of the suit. He further submits that the impugned order is liable to be set aside as it is not based on proper grounds or reasonings. 3. Perused the impugned order dated 11.02.2025 passed by the learned Civil Judge (Senior Division), Bhadrak in C.S. No. 1302 of 2023. 4. By virtue of the order, as the Petitioner of the defendant for acceptance of the written statement has been allowed subject to payment of cost of Rs.1000/- holding that even though several opportunities have been given to the defendant to file her written statement, it is the settled position of law that opportunity should be given to both the parties to represent the case and there would be miscarriage of justice if the defendant is not allowed to contest the case by filing written statement. JUDICIAL PRONOUNCEMENT 5. In the case of Kailash v. Nanhku : (2005) 4 SCC 480, the Supreme Court has held that : - “42….The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted p. 3 p. 3 just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well- settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which do exist.” 6. In the case of Salem Advocate Bar Association, T.N. vs. UOI : (2005) 6 SCC 344, the Court has held that the upper limit of p. 4 p. 4 ninety days in Order 1, Rule 8 of the C.P.C is directory. The relevant portion is extracted below : “20. The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.” ANALYSIS AND CONCLUSION 7. As reasons have been given by the learned trial Court for accepting the written statement and cost has been awarded, I am not satisfied that the impugned order suffers from any serious illegality or p. 5 p. 5 infirmity warranting interference of this Court in exercise of power under Article -227 of the Constitution of India. 8. But considering the advanced age of the plaintiff and the observation of the learned trial Court that the defendant had earlier been granted opportunity to file the written statement, the CMP is disposed without interfering with the impugned order, but directing the learned trial Court to proceed with the suit without granting unnecessary adjournments to the defendants. …………………. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated the 9th January, 2026/Sukanta Designation: Senior Stenographer