Page No.# 1/4 GAHC010211402024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/412/2024 MD IDRISH ALI SON OF SAMIR UDDIN, RESIDENT OF HERAPATTY, MOUZA- KACHAMARI, P.O.- NAGAON (SADAR), DISTRICT- NAGAON (ASSAM), PIN- 782002. VERSUS ABDUL KUDDUS @ KUDDUS ALI SON OF LATE TAHER ALI, RESIDENT OF HERAPATI, MOUZA- KACHAMARI, P.O.- NAGAON (SADAR), DISTRICT- NAGAON (ASSAM), PIN- 782002. Advocate for the Petitioner : MR. B K DAS, MR H P GUWALA,H P NEOG Advocate for the Respondent : MR. SURAJIT DAS, MR. P P DAS BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 02.04.2025 Heard Mr. B.K. Das, learned counsel for the petitioner and also heard Mr. P.P. Das, Page No.# 2/4 learned counsel for the respondent. 2. In this application under Article 227 of the Constitution of India, the petitioner has put to challenge the correctness or otherwise of the order dated 13.09.2022 passed by the learned Civil Judge (Jr. Division) No.1, Nagaon, in Title Suit No.25/2021. It is to be noted here that vide impugned order dated 13.09.2022, the learned Civil Judge (Jr. Division) No.1, Nagaon, has refused to accept the written statement filed by the petitioner. 3. Perused the petition as well as the documents placed on record and also perused the order dated 13.09.2022 passed by the learned Civil Judge (Jr. Division) No.1, Nagaon, in Title Suit No.25/2021. 4. Mr. Das, learned counsel for the petitioner submits that the petitioner herein is the defendant in Title Suit No.25/2021. He filed written statement along with petition No.1027/2022, dated 13.09.2022 for acceptance of the written statement with the explanation that due to some physical illness he could not file the written statement within time. But the learned Trial Court after hearing both the parties, dismissed the petition vide order dated 13.09.2022 on the ground that the written statement filed by the petitioner is time barred. Mr. Das further submits that the suit is pending at the stage of service report/WS for the respondent No.9 and as such, no prejudice will be caused to the other side if the learned Court is directed to accept the written statement of the petitioner by setting aside the order dated 13.09.2022 and the petitioner herein has explained the cause for failing to file the written statement within the stipulated period and also enclosed the medical documents and that Order 8 Rule 1 of CPC is held to be not mandatory as held by Hon'ble Supreme Court in the case of Salem Advocate Bar Association v. Union of India, reported in (2005) 6 SCC 344 and a Coordinate Bench of this Court also in the case of Dalia Ghosh v. Jayanta Ghosh, reported in 2006 (1) GLT 678, held that Order 8 Rule 1 and the proviso thereto are Page No.# 3/4 directory in character and as such, Mr. Das has contended to allow this petition by setting aside the impugned order dated 13.09.2022 by imposing a minimal cost. 5. Per contra, Mr. P.P. Das, learned counsel for the respondent submits that the petitioner could not file the written statement within the stipulated period and though he filed the written statement along with petition No.1027/2022 explaining the reason for delay, yet, the said petition was not supported by any medical document for which the learned Trial Court has rightly dismissed the petition and refused to accept the written statement and the said order is not illegal or arbitrary so as to interfere by this Court by exercising the jurisdiction under Article 227 of the Constitution of India. However, Mr. Das submits that the case is still pending at the stage of service report upon respondent No.9. 6. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 13.09.2022. 7. It appears that there was delay of 385 days in filing the written statement and on 13.09.2022, the petitioner has filed the Petition No.1027/2022 along with the written statement on the ground that due to physical illness of the petitioner/defendant, he failed to appear before the Court and to communicate the same through engaged advocate. But the said petition as it appears from the impugned order dated 13.09.2022 was not supported by any medical document, though some medical document has been furnished before this Court to substantiate the said claim. It also appears that the case is pending at the stage of service report upon respondent No.9. 8. It is also well settled in the case of Salem Advocate Bar Association (supra) that Order 8 Rule 1 is directory and the Rule is not inflexible one and the Court can on the sufficient ground being shown may condone the delay in filing the written statement. A Coordinate Bench of this Court also in the case of Dalia Ghosh (supra), held that the provision is directory in character. Thus, taking note of the fact that Page No.# 4/4 sufficient ground has been shown for failing to file the written statement within the stipulated period and further considering the fact that the case is still in the stage of service report upon respondent No.9, this Court is of the view that no prejudice will be caused to the respondent herein if the written statement is accepted by the learned Trial Court. It is also held in paragraph 20 of the Salem Advocate Bar Association (supra) that 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 of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 9. Thus, taking note of the submission of learned counsel for both the parties and also considering the facts and circumstances on the record and also drawing premises from the decision referred herein above, this Court is of the view that end of justice would be meted out if the present petition is allowed. Accordingly, the impugned order dated 13.09.2022 stands set aside and quashed and the learned Trial Court is directed to accept the written statement filed by the petitioner subject to a sum of Rs.5,000/- being deposited before the learned Trial Court on next date. 10. The parties are directed to appear before the learned Trial Court on or before the next date. Comparing Assistant Sd/- Robin Phukan JUDGE