Page No.# 1/6 GAHC010208842023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/357/2023 MD. BHAINUR ALI S/O LATE NASIR ALI, R/O PIYALIKHATA (BORICHUA), MOUZA- MADARTOLA, P.O.-BAIHATA CHARIALI, P.S.-CHANGSARI, PIN-781381, DIST-KAMRUP (R), ASSAM VERSUS AKLIMA BEGUM AND 2 ORS W/O LATE MAFRUJ ALI, R/O PIYALIKHATA (BORICHUA), MOUZA- MADARTOLA, P.O.-BAIHATA CHARIALI, P.S.-CHANGSARI, PIN-781381, DIST-KAMRUP (R), ASSAM 2:MAKBUL ALI S/O LATE MAFRUJ ALI R/O PIYALIKHATA (BORICHUA) MOUZA-MADARTOLA P.O.-BAIHATA CHARIALI P.S.-CHANGSARI PIN-781381 DIST-KAMRUP (R) ASSAM 3:MANIK ALI S/O LATE MAFRUJ ALI R/O PIYALIKHATA (BORICHUA) MOUZA-MADARTOLA P.O.-BAIHATA CHARIALI P.S.-CHANGSARI PIN-781381 DIST-KAMRUP (R) ASSA Advocate for the Petitioner : MR. A PAUL, MS. A DEY Page No.# 2/6 Advocate for the Respondent : MS. T SOM, MS S ISLAM BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 29.01.2025 Heard Mr. A. Paul, learned counsel for the petitioner. Also heard Ms. T. Som, learned counsel for the respondents. 2. By filing this application under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure (herein after referred as CPC, 1908), the petitioner has prayed for setting aside the impugned order dated 16/07/2022 passed by the learned Munsiff, Rangia, Kamrup in T.S. No. 13/2020. 3. The brief facts of the case is that father of the respondent Mafruj Ali during his lifetime filed a Title Suit against 17 persons with a prayer for declaration of right, title and interest over Schedule – ‘Ka’ and ‘Kha’ by making partition and for a preliminary decree in the court of Munsiff, Rangia, Kamrup on 28/08/2020. However, during the pendency of the aforesaid suit in the Court of Learned Munsiff, Rangia, the plaintiff Mafruj Ali expired on 01/01/2022, whereby the name of the respondents have been inserted in the plaint by substituting the name of the Original plaintiff. On being summoned on 23/03/2022, the petitioner engaged a counsel to deal with his case. A prayer was made on his behalf to file Written Statement in reply to the Plaint on the first day of engagement of his counsel. Subsequently, on 16/07/2022, when the aforesaid case was fixed for further proceeding, an application was preferred by the engaged counsel of the petitioner to allow another date for filing Written Page No.# 3/6 Statement on the ground that some necessary documents were not available with the petitioner at the relevant time for which written statement of the petitioner could not been prepared and also on the ground of his illness. 4. However, the Learned Munsiff has rejected the application on the observation that as summons upon the defendant No. 17 i.e., the present petitioner was duly served on 23/03/2022 statutory period for filing WS as mandated by law has already been exceeded and even no any medical documents has been provided by the defendant on the ground of his illness. 5. The learned counsel for the petitioner contended that he has right, title and interest upon the said land by virtue of Sale and Purchase from Defendant No. 16 one Rejina Begum. Moreover, due to some inconsistency in demarcation of the suit lands among the legal heirs of Mamat Ali, the aforesaid case was filed by the deceased father of the respondents in the court of Learned Munsiff, Rangia, Kamrup. Therefore, if the instant suit shall proceed ex-parte against the present petitioner then it will cause grave prejudice to the petitioner. 6. The learned counsel for the petitioner further contended that only 27 days delay has been caused by the petitioner from the prescribed period for filing of WS in the Trial court. In support of his submission, learned counsel for the petitioner has placed reliance on the following case laws – a. (2010) 4 GLT 848 [Manager (Finance), Hindustan Paper Corporation Limited vs. Canara Bank]. b. [CRP (IO)/365/2024] (Mampi Gogoi vs. Naruttam Sonowal) Page No.# 4/6 7. Per contra, learned counsel for the respondent objected the contentions raised by the petitioner. The learned counsel for the respondent submits that as the Written Statement was not filed within the stipulated period as prescribed under the Civil Procedure Code, 1908, i.e., within the period of 90 days, the learned Munsiff, Rangia was right in rejecting the prayer of the defendant No. 17 and proceeding the suit ex-parte. 8. I have heard the submissions of the learned counsel for the parties. I have perused the record. 9. Hon’ble Supreme Court in the case of Bharat Kalra vs. Raj Kishan Chabra, reported in 2022 Live Law (SC) 465, has observed that the time limit for filing of the written statement is not mandatory. Delay in filing of the written statement could very well be compensated with costs. 10. Order VIII, Rule 1 of Civil Procedure Code, 1908 reads as under :- Rule 1. Written statement - 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. Page No.# 5/6 11. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away. 12. Coming to the question, whether the learned Munsiff was right in rejecting the prayer of the petitioner for filing of the Written Statement after the period of 90 days exceeded, we can observe from the decisions of the Hon’ble Supreme court as well as other High Court that the time limit for filing of the written statement is not mandatory and is infact discretionary in nature. The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of the Court to extend the time. 13. Consequently, the present application is allowed. The Written Statement if any filed by the present petitioner shall now be taken on record but subject to payment of Rs.2000/- by way of costs payable by the petitioner herein to respondent within a period of 4 weeks from today. If the Written Statement is not filed by the present petitioner till date, then the trial court is directed to fix a date after 15 days on receipt of certified copy of this order to submit Written Statement by the petitioner. However, if the petitioner fails to file the Written Statement within the stipulated period, the trial court is at liberty to pass necessary order in accordance with law. 14. The order passed by the learned Munsiff, Rangia, Kamrup dated 16/07/2022 is hereby set aside. The trial Court shall expedite the decision of the Page No.# 6/6 suit. Pending application(s), if any, also stand disposed of. JUDGE Comparing Assistant