A.H. Saikia, J.@mdashHeard Mr. G.N. Sahewalla, learned senior counsel, assisted by Md. Aslam, learned Counsel for the petitioner and Mr. S.
Banik, learned Counsel for the respondent.
2. This petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 28.4.2004 passed by the
learned Addl. District Judge, Dibrugarh in T.S.(D) No. 2/01 renumbered as Title Suit (D) 57/03 wherein the petitioner was directed to pay
maintenance pendentilite to the respondent as per order dated 23.5.2003 passed by the learned District Judge, Dibrugarh in the same case.
3. The impugned order dated 28.4.2004 may be noticed as under:
Parties appeared before court alongwith their Id. counsel. It is submitted by Id. counsel for the petitioner/respondent that the petitioner/opp. Party
has not paid any amount towards maintenance pendentilite. Petition shall pay the maintenance pendentilite to the opp. party as per order dated
23.5.2003 respondent submitted written statement. As such the suit will proceed.
Fixing 12.5.2004 for issue and documents.
4. On close perusal of the impugned order dated 28.4.2004 as well as the materials available on record, it would appear that the initial order dated
23.5.2003 on the basis of which the impugned order has been passed, has not been challenged. That being so, this Court does not find any
illegality and/or irregularity in the impugned order calling for interference by this Court in its superintendenting/revisional jurisdiction vested under
Article 227 of the Constitution of India.
5. At this stage Mr. Sahewalla, learned senior counsel has forcefully submitted that the petitioner is mainly aggrieved by the acceptance of the
written statement which has been filed after a long gap of time of 2 years after appearance of the respondent in the instant suit. It is contended by
him that the learned Trial Court flouted the mandatory provisions of Order 8, Rules 1 and 10 of the CPC (''the C.P.C.'') in allowing the respondent
to file her written statement at a belated stage and as such, this impugned order, so far acceptance of the written statement submitted by the
respondent is concerned, is liable to be set aside.
6. From proper scrutiny of the records made available before this Court including the order dated 23.5.2003, it would go to show that the
Opposite party entered appearance on 27.6.2001 but no written statement was filed. Impugned order dated 28.4.2004 indicates that the
respondent has submitted written statement. However, present record does not indicate how many dates were granted to the opposite party to file
written statement. The amended provision of Order 8, Rule 1 CPC which came into force w.e.f. 1.7.2002 provides a time frame of 90 (ninety)
days for submission of written statement from the service of summons. That being so, for compliance of this 90 (ninety) days time schedule in the
instant case, the period shall commence from 1.7.2002 though the opposite party appeared in 2001 more so, the Apex Court in a recent case of
Kailash Vs. Nanhku and Others, held that the provisions of Order 8, Rule 1, CPC are directory in character and not mandatory. Further it was
held that though an obligation is cast on the defendant/opposite party to file a written statement within the time prescribed, the provisions did not
deal with nor specifically took away the power of the Court to accept a written statement on record though filed beyond the time as provided
under Order 8, Rule 1 CPC. In view of the same in the instant case, the acceptance of the written statement so submitted by the respondent by the
trial courts is hereby approved in the light of Kailash''s case (supra).
7. That apart, when the petitioner himself failed to comply with the Court''s specific direction given on 23.5.2003 to make payment of maintenance
pendentilite, it appears that no grave injustice has been done to the petitioner in accepting the written statement submitted by the respondent, by the
trial Court.
8. It is settled law that jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and that too only to correct
jurisdictional error and patent illegality. In the instant case, taking into account the facts and circumstances in its entirety and having regard to
Kailash''s case (supra), this Court does not find any jurisdictional error or any patent illegality in the impugned order.
9. Consequently, this petition fails and stands dismissed.
10. Interim order passed on 11.5.2004 shall also stands vacated.