Page No.# 1/6 GAHC010080632026 2026:GAU-AS:10290 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/155/2026 KADDUS ALI S/O LT. KARIM ALI, R/O VILL- RUBHI, P.O AND P.S- KAGACHIA, DIST- BARPETA, ASSAM, PIN NO- 781317 VERSUS BANIZ ALI AND 5 ORS. S/O ABDUL ALI, R/O VILL- BALIKURI, P.O- BALIKURI, P.S- KALGACHIA, DIST- BARPETA, ASSAM, PIN-781319 2:ABDUL ALI S/O LT. INNU BEPARI R/O VILL- BALIKURI P.O- BALIKURI P.S- KALGACHIA DIST- BARPETA ASSAM PIN-781319 3:RAHAM ALI S/O ABDUL ALI R/O VILL- BALIKURI P.O- BALIKURI P.S- KALGACHIA DIST- BARPETA ASSAM PIN-781319 4:THANDU MIAH S/O ABDUL ALI R/O VILL- BALIKURI P.O- BALIKURI Page No.# 2/6 P.S- KALGACHIA DIST- BARPETA ASSAM PIN-781319 5:JAKIR HUSSAIN S/O RAHAM ALI R/O VILL- BALIKURI P.O- BALIKURI P.S- KALGACHIA DIST- BARPETA ASSAM PIN-781319 6:TARAP ALI S/O LT. HAMED ALI R/O VILL- BALIKURI P.O- BALIKURI P.S- KALGACHIA DIST- BARPETA ASSAM PIN-78131 Advocate for the Petitioner : MD H R AHMED, MR A MALEK Advocate for the Respondent : G BORO, MR D J HALOI BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 23.07.2026 Heard Mr. H.R. Ahmed, learned counsel for the petitioner and Mr. D.J. Haloi, learned counsel for the respondents. 2. In this petition, under Article 227 of the Constitution of India, read with Section 151 of the CPC, the petitioner has challenged the order dated 13.02.2026, passed by the learned Civil Judge (Senior Division), Barpeta (trial court hereinafter), in Misc. (J) Case No. 205/2025, arising out of Title Suit No. Page No.# 3/6 52/2019. 3. It is to be noted here that vide impugned order dated 13.02.2026; the learned trial court had rejected the petition filed by the petitioner, as plaintiff, for allowing him to file written statement against the counter claim filed by the respondent herein. 4. Mr. Ahmed, learned counsel for the petitioner, submits that the petitioner herein, as plaintiff, had instituted one title suit, being Title Suit No. 52/2019, before the learned trial court. In the said title suit, the respondent herein, as defendant, had entered appearance and filed counter claim. And though the petitioner had received the counter claim, he did not file any written statement against the same and the learned trial court also did not fix any date for filing of written statement in the counter-claim. Thereafter, the case was posted for settlement of issues, wherein the petitioner herein had filed draft issues. Thereafter, the trial commenced and the witnesses were cross-examined by the petitioner in respect of the counter claim filed by the respondent herein. And at the end of the trial, it has come to the notice of the petitioner that written statement to the counter-claim was left to be filed. Then petitioner herein, had filed a petition before the learned trial court, being petition No. 1942/2025, for allowing him to file written statement, upon which the learned trial court had registered a miscellaneous case, being Misc. (J) Case No. 205/2025 and thereafter, hearing both the parties, vide impugned order dated 13.02.2026, the learned trial court had dismissed the same. 4.1. Mr. Ahmed, taking this Court through the Order VIII Rule 6A(3) of the CPC, submits that the court has to fix a date for filing of written statement against the counter claim. But, the learned trial court did not fix any time for Page No.# 4/6 filing of written statement against the counter claim and as such, the impugned order suffers from perversity and therefore, it is contended to set aside the same. He also submits that some sort of lapse was there on the part of the counsel for the petitioner, and it is well settled that for the fault of the counsel the litigants should not suffer. Therefore, he has contended to allow this petition. 5. Per-contra, Mr. Haloi, learned counsel for the respondents, submits that the petitioner herein, after receiving the copy of the counter claim, did not file the written statement and also did not pray for granting time before the learned court. Instead, it had filed draft issues before the court and upon the same, issues were framed and thereafter, evidences were led and the petitioner herein had cross-examined the witnesses of the respondents herein in respect of the prayer in the counter claim. 5.1. Mr. Haloi further submits that the petitioner herein had filed the petition only on 13.02.2026, while the case was fixed for argument and as such, there is no merit in this petition and therefore, he has contended to dismiss the same. 6. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition as well as the documents placed on record and also perused the impugned order, dated 13.02.2026, passed by the learned trial court and also gone through the relevant provisions of law. 7. It is to be noted here that Order VIII Rule 6A(3) of the CPC provides that the plaintiff, against whom the counter claim is filed, shall be at liberty to file a written statement in answer to the counter claim of the defendant Page No.# 5/6 within such period as may be fixed by the court. Further, Order VIII Rule 6A(4) of the CPC provides that the counter claim shall be treated as a plaint. As such, the rules applicable to the written statement, generally apply in the case of the written statement against the counter claim also. 8. It appears that the issues were framed in the year 2020, and thereafter, the evidences were led and the petitioner herein and also he had cross-examined the witnesses of the respondent herein, in respect of the counter claim also. But, the petitioner herein had not raised any issue for last six years. He filed the application only on 02.09.2025, and as such, the petition suffers from waiver and acquiescence and not filing the written statement despite getting opportunities and had participated in the proceeding actively. Thus, the petitioners herein deemed to have been waived his right to file written statement in the counter-claim. 8.1. Further, having failed to formally plead defence against the counter claim and proceedings without any objection, implies acceptance and abandonment of contest on pleadings. And due to long inaction, and engagement in cross-examination of witnesses even in respect of the evidence lead in respect of counter claim demonstrate his acquiescence. And allowing a written statement at this stage would cause prejudice to the other side, since it would amount re-opening of defence. And in the event of allowing the petition, the requirement of leading potential additional evidence may also arise and in that event it will further prolong the trial. 8.2. Over and above, the petitioner herein has failed to assign any sufficient cause to substantiate the delay in filing the written statement. It is well settled in the case of Kailash vs. Nankhu and Others, reported in Page No.# 6/6 (2005) 4 SCC 480 and also in the case of Salem Advocate Bar Association, T.N. vs. Union of India, reported in (2005) 6 SCC 344, that only in extra-ordinary and exceptional circumstances, the time to file written statement can be extended. In the instant case the petitioner has failed to demonstrate any such circumstances. Merely on the ground that the conducting counsel had not properly instituted the petition about the written statement, which the petitioner was required to be filed, he cannot be allowed to file the same at the fag-end of the trial. 9. It is to be noted here that in the case of A.K. Ghosh and Company vs. Biman Bose, reported in 2026 INSC 684, wherein Hon’ble Supreme Court has held that even for replies to the counter claim, still a time line under the Commercial Court Act applies. Though the aforesaid proposition is laid down in case of Commercial Court Act, yet the principle can be applied in the present case also. 10. Thus, having examined the impugned order in the light of the aforementioned factual and legal matrix, this Court is of the view that the impugned order suffers from no irregularity or illegality requiring any interference. Accordingly, this petition stands dismissed. 11. Stay, if granted earlier, stands vacated. JUDGE Comparing Assistant