IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.163 of 2025 Akshya Kumar Behera …. Petitioner Mr. D. Nanda, Advocate -Versus- Gobinda Chandra Sethi and others …. Opposite Parties None CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 12.02.2025 01. 1. Heard Mr. Nanda, learned counsel for the petitioner. 2. No notices are issued to the opposite parties as the matter is disposed of at the stage of admission. 3. Instant petition is filed by the petitioner challenging the impugned order dated 4th January, 2025 passed in connection with CS No.826 of 2024 by learned Civil Judge, Bhubaneswar under Annexure-4, whereby, an application seeking acceptance of WS was rejected. 4. Mr. Nanda, learned counsel for the petitioner submits that there is delay of one month only which ought to have been condoned by the learned court below accepting the WS filed by the petitioner but the same was declined on the premise that it was barred on expiry of 90 days and delay not being reasonable or probable. The submission is that such delay, whatever, has occasioned in filing of the WS should have been condoned, as the petitioner, in the event, the same is not accepted, is likely to suffer immensely and lose title in respect of the property in question, the fact, which was not duly taken cognizance by the learned court below, hence, therefore, the impugned order under Annexure-4 is liable to be set aside with consequential directions issued. 5. The suit is at the instance of opposite party No.1 seeking relief of permanent injunction against the petitioners over and in respect of the schedule property morefully described in the plaint at Annexure-1, wherein, the WS was filed but was not accepted vide Annexure-4. The delay is the reason behind not accepting the WS of the petitioner as defendant No.3 in the suit. Admittedly, there has been expiry of 90 days on 29th August, 2024 upon appearance of the petitioner on 21st May, 2024, hence, it was the reason for learned court below to decline accepting the WS as time barred. 6. In course of hearing, Mr. Nanda, learned counsel for the petitioner relies on a decision of this Court in Smt. Sarbati Devi Goinka Vrs. Durga Prasad Agrawal 2009 (I) OLR 48 to contend that the WS of the petitioner should have been accepted by the learned court below. On a reading of the decision (supra), it is held and observed therein that the provisions contained in Order 8 Rule 1 CPC is procedural and not a substantive law and jurisdiction of a court either to accept or refuse WS is to be judicially exercised. It is further held that stipulation of 90 days for filing WS from the date of service of summons is not an iron tight jacket, so observed, referring to a case law reported in (2007) 6 SCC 420 in the case of M/s. R.N. Jadi & Brothers and others Vrs. Subhashchandra. Page 3 of 3 7. Considering the above citations and the fact that there has been delay which is not in dispute and 90 days period expired on 29th August, 2024 and admittedly, the petitioner as defendant No.3 responded with a WS with delay, the Court is of the considered view that it should have been accepted. The Court reaches at such a conclusion in view of the ratio laid down in the cases (supra). In fact, the Court is of the view that there is no absolute bar in accepting WS after expiry of the stipulated period. In case, delay has taken place in filing of WS, the Court is required to consider reason behind it and the consequence it would follow in the event the same is denied with a pragmatic approach in mind. In the instant case, such delay of a month, as according to learned court below, was found to be improbable, to which the Court is not in agreement. For the aforesaid discussions, the Court is inclined to interfere with the impugned order under Annexure-4 allowing the petitioner to file the WS to be accepted in the suit. 8. Hence, it is ordered. 9. In the result, the petition stands allowed. As a necessary corollary, the impugned order under Annexure-4 in CS No.826 of 2024 by learned Civil Judge, Bhubaneswar is hereby set aside with a direction to accept the WS of the petitioner and thereafter, to proceed and to dispose of the suit according to law. 10. In the circumstances, however, there is no order as to costs. 11. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge TUDU