Page No.# 1/3 GAHC010011622026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/12/2026 MD. SHAMS TABREJ KHAN S/O LATE BADRUDDIN KHAN, R/O OLD AMOLAPATTY, P.S.- DIBRUGARH, DIST- DIBRUGARH, ASSAM-786001 VERSUS ABDUL KHALIQUE KHAN AND ANR SON OF LATE ABDUL LATIF KHAN, RESIDENT OF MAKUM ROAD, POLICE STATION -TINSUKIA, DISTRICT- TINSUKIA, ASSAM- 786125. 2:FIROJ KHAN S/O LATE HABIB KHAN R/O THAKURBARI ROAD NEW MARKET NEAR BATA SHOES SHOWROOM DIBRUGARH ASSAM-78600 Advocate for the Petitioner : MS M HAZARIKA, MS. S NEWAR Advocate for the Respondent : , BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 30.01.2026 1. Heard learned Senior Counsel Ms. M. Hazarika for the petitioner who has Page No.# 2/3 been arrayed as defendant No. 1 in T.S. Case No. 37/2025. The petitioner has been debarred from submitting written statement vide order dated 01.11.2025 in connection with T.S. Case No. 37/2025. 2. It is submitted that the petitioner will be highly prejudiced if he is not allowed to contest the proceedings by submitting written statement. It is further submitted that in a similar circumstanced case in Misc. (J) Case No. 53/2025, on the same day, the petitioner was however allowed to submit his written objection in connection with the aforementioned Misc. case. It is submitted that the statutory period to file written statement within 90 days is directive and not mandatory. 3. It is further submitted that under the facts and circumstances, the learned counsel for the petitioner was undergoing treatment after a major accident, the order debarring the petitioner from submitting his written statement appears to be harsh. 4. The learned counsel for the petitioner has relied on the decision of the Hon'ble Supreme Court in Kailash Vs. Nankhu & Ors reported in 2005 SCC (4) 480, wherein it has been held that:- “27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the Page No.# 3/3 same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. **** **** **** 32. Our attention has also been invited to a few other provisions such as Rules 9 and 10 of Order 8. In spite of the time-limit appointed by Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement. Under Rule 10, the court need not necessarily pronounce judgment against the defendant who failed to file written statement as required by Rule 1 or Rule 9. The court may still make such other order in relation to the suit as it thinks fit.” 5. A pragmatic view is taken by this Court and for the ends of justice, it appears that the petitioner may be accorded an opportunity to file written statement and contest the proceedings without issuing notice to the respondent. This Court deems fit and appropriate and to accord an opportunity to the petitioner to appear before the learned Trial Court and file his written statement. 6. Thereby, the impugned order dated 01.11.2025 is set aside and the petitioner is directed to appear before the Trial Court within 1 (one) month from the date of this order and submit his written statement. 7. In terms of the above observation, this petition stands disposed of. JUDGE Comparing Assistant