Ram Nandan Poddar and Another Vs Laxmi Prasad Sah and Others

@JUDGMENTTAG-ORDER

S.N. Hussain, J.@mdashHeard learned counsel for the petitioners and learned counsel for plaintiff-opposite parties first set. No one appears for other opposite parties although notices have been validly served upon them. This Civil Revision has been filed on behalf of defendants No. 1 and 2-petitioners against order dated 14.2.2005. by which the learned Subordinate Judge-ll. Rosera, allowed the petition filed by defendants No. 2(a) to 2(d) (opposite parties No. 7 to 10) and allowed them to file their written statement in Title Suit No. 59 of 1996.

2. The aforesaid title suit was filed by the plaintiff-opposite parties first set for declaration of their title as well as for other ancillary reliefs. Defendants No. 1 to 3 appeared in the suit and filed their joint written statement in the year 1999 contesting the suit. During the pendency of the suit, defendant No. 2 Ramchalitar Singh died and his heirs and legal representatives were substituted in his place by the learned below and notices were sent to the said heirs, who are defendants No. 2(a) to 2(d), who appeared in the said suit on 19.9.2003. After much more than ninety days, they filed a petition on 23.12.2003. which was rejected by he learned court below on the same day i.e. on 23.12.2003 debarring them from filing any fresh written statement.

3. However, after more than a year a petition was filed by defendants No. 2(a) to 2(d) (opposite parties No. 7 to 10) in the learned court below on 10.1.2005 for recall of the order of the learned court below dated 23.12.2003 and accept the written statement filed by them. A rejoinder to the said petition was filed on behalf of defendants No. 1 and 3. The said matter was decided by the learned court below by impugned order dated 14.2.2005 considering the entire matter and finding that the said substituted defendants were bound by the pleadings of their predecessor-in-interest and that even otherwise they did not file any such petition within the time prescribed under Order VIII Rule 1 of the CPC (hereinafter referred to as ''the Code'' for the sake of brevity), but in spite of the said finding, the learned court below allowed the said defendants to file their written statement as a last chance on payment of cost to the plaintiffs as well as to defendants No. 1 and 3. The cost paid to the plaintiffs was accepted, whereas, defendants No. 1 and 3 did not accept the cost and filed the instant Civil Revision challenging the said order of the learned court below dated 14.2.2005.

4. Law is well-settled in this regard on both the counts. Firstly, proviso to Rule 1 of Order VIII of the Code prescribes that where the defendant fails to file the written statement within a period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. Here in the instant case, not only from the date of service of summons, but even from the date of appearance of defendants No. 2(a) to 2(d) in the court below, the petition filed by them was beyond the aforesaid period of ninety days. Furthermore, the reason given for the delay has been shown to be paucity of money, which cannot be held to be a very exceptional circumstance. It has already been held by this Court in case of Smt. Sunita Devi and Others Vs. Abdhesh Kumar Sinha alias Kamleshwari Pd. Sinha and Others that the provision of Rule 1 of Order VIM of the Code has to be strictly adhered to as the filing of the written statement within the period prescribed is the rule, whereas, accepting the written statement beyond it should be an exception and is left to the court''s judicial discretion, which should be exercised with extreme caution under very exceptional and compelling circumstances. But here in the instant case, no such exceptional and compelling circumstances having been shown, the court had rightly passed its earlier order dated 23.12.2003 and there was no occasion for the learned court below to recall or modify the same by the impugned order.

5. Secondly, it is also well-settled that when a defendant files a written statement and, thereafter, dies and is substituted by his heirs in the suit under the provision of Order XXII Rule 4 of the Code, the said heirs step into the shoes of their said predecessor deceased defendant with all rights and liabilities and are precluded from presenting a case inconsistent with the facts set up by the deceased defendant. Reference in this regard may be made to a decision of this Court in case of Ramashray Mahto and Others Vs. Amiri Mahto and Another as well as in case of Om Prakash Verma Vs. Smt. Shila Shukla and Others, . Furthermore, it is not a case of defendants No. 2(a) to 2(d) that defendants No. 1 and 3 had played any fraud, forgery or misrepresentation by filing the earlier written statement in the suit on behalf of defendants No. 1,2 and 3.

6. In the said circumstances, there was no occasion for the learned court below nor it had any jurisdiction to recall its earlier order dated 23.12.2003 debarring defendants No. 2(a) to 2(d) from filing their any fresh written statement as order dated 23.12.2002 was quite legal, valid and proper. Considering the aforesaid facts and circumstances, this Civil Revision is allowed and the impugned order of the learned court below dated 14.2.2005 is set aside and the learned court below is directed to expedite the hearing of the suit as it is more than a decade old.