25.04.2025 14. C.O. 3924 of 2024 IA No. CAN 1 of 2025 CAN 2 of 2025 Ct.29. Bd. Anjana Sana -Vs- Anirban Bachhar & Ors. Mr. Anirban Mitra Mr. Amit Halder Mr. Amit Roy Mrs. Madhumita Sadhukhan … for the petitioner. Mr. G.K.Das Mr. Kapil Chandra Saha Mr. P.Dutta … for the opposite parties Being aggrieved and dissatisfied with the order dated 8th July, 2024 passed by learned Civil Judge, (Junior Division) at Basirhat in Title Suit No. 133 of 2020, the present application has been preferred. The petitioner’s contention is that plaintiff/opposite party herein filed aforesaid suit for declaration that the marriage certificate of plaintiff’s father is void and not binding upon plaintiff and also for injunction. Defendant appeared in the above-mentioned suit before the Trial Court and prayed time to file the written statement against the amended plaint to defend inter alia that it is totally false to say that the marriage of defendant with plaintiff’s father was not solemnized or that the defendant was not 2 married with plaintiff’s father Rabindranath Bachhar according to Hindu Rights and Customs on 25.12.2005. The grievance ventilated herein by the petitioner is that though defendant filed written statement within statutory period from the date of filing amended plaint by plaintiff but on 15.09.2023 by the impugned order, the learned court below rejected the cause shown by the defendant, and refused to accept written statement observing that defendant has not filed the written statement within the statutory period. In fact no delay was caused in the present case for filing the written statement and as such the order impugned rejecting the defendant’s prayer for acceptance of the written statement is perverse and liable to be set aside. Learned counsel appearing on behalf of the opposite parties raised strong objection contending that the statutory period given under Order VIII Rule 1 is to be reckoned from the date of service of summon upon the defendant and not from the date of filing of the amended plaint, as contended by the petitioner herein. He further submits that the suit was filed on 6th July, 2020 and the defendant appeared on 6th 3 April, 2022 and as defendant failed to file the written statement within the statutory period as mandated in the Code, the Trial Court was justified in rejecting the defendant’s prayer for acceptance of the written statement and to post the suit for ex- parte hearing and as such the order impugned does not call for interference by this High Court. I have considered the submissions made by both the parties. There is no quarrel with the proposition of law that when the amendment of pleading is allowed by court it relates back to the date of presentation of plaint and admittedly instant suit was filed in the year 2020, whereas defendant filed his written statement on 17.10.2023. However, fact remains that suit was filed in July 2020 when COVID pandemic was in full swing and apart from that knowledge about entire case of plaintiff was divulged to the defendant only with the filing of amended plaint on 26.07.2023. However the plaintiff now wishes to stick to a mere technicality that written statement was not filed within 90 days from the date of service of summon. If such contention of plaintiff is to be accepted, then this would merely amount to giving preference to procedure over substance. There 4 could be absolutely no chance of causing prejudice to the plaintiff, if the defendant is allowed participating in the process of justice dispensation by acceptance of written statement. It is settled law that “shall not be latter than ninety days” used in proviso to Rule 1 of order VIII do not take away the power of the court to accept written statement beyond that time. Time limit in Rule 1 has been incorporated to curb the mischief of unscrupulous defendants who adopts dilatory tactics. In the present case as plaintiff completed his pleading only on 26.7.2023, the delay in disposal of the case cannot be solely attributable to the defendant. When contention of the parties sought to be agitated in their respective pleading, as indicated above, prima facie has a merit for adjudication about legality and enforceability of defendants claim of marriage, issue should be decided on merit after contested hearing as far as practicable. Therefore delay, if any, caused by defendant in filing the written statement could very well be compensated by cost but denying the benefit of filling of the written statement would amount to thrown away a meritorious defence at it’s threshold on the ground of technicality. 5 In such view of the matter, C.O. 3924 of 2024 is hereby disposed of with a direction upon the petitioner/defendant herein to pay cost of Rs. 3,000/- to the plaintiff within a period of four weeks from this date. On such payment the trial court will accept the written statement and will fix a date for framing of issues and will make every endeavour for expeditious disposal of the suit without giving any unnecessary adjournment to either of the parties at the earliest. In view of disposal of the main application all the connected applications are also disposed of. (Dr. Ajoy Kumar Mukherjee, J.)