Patna High Court
Sri Suresh Prasad Singh vs The State Of Bihar on 27 March, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.739 of 2023
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1. Sri Suresh Prasad Singh Son of Late Raghunath Mandal @ Raghu Prasad
Singh, Resident of Village- Kankaithi, Post Office- Simariya, Police Station-
Jagdishpur, District- Bhagalpur.
2. Sri Naresh Prasad Singh Son of Late Raghunath Mandal @ Raghu Prasad
Singh, Resident of Village- Kankaithi, Post Office- Simariya, Police Station-
Jagdishpur, District- Bhagalpur.
3. Sri Sumendra Prasad Singh Son of Late Raghunath Mandal @ Raghu Prasad
Singh, Resident of Village- Kankaithi, Post Office- Simariya, Police Station-
Jagdishpur, District- Bhagalpur.
4. Sri Yogendra Prasad Singh Son of Late Raghunath Mandal @ Raghu Prasad
Singh, Resident of Village- Kankaithi, Post Office- Simariya, Police Station-
Jagdishpur, District- Bhagalpur.
5. Sri Jagdish Prasad Singh Son of Late Bhubneshwar Mandal Resident of
Village- Kankaithi, Post Office- Simariya, Police Station- Jagdishpur,
District- Bhagalpur.
6. Sri Sachidanand Singh Son of Late Bhubneshwar Mandal Resident of
Village- Kankaithi, Post Office- Simariya, Police Station- Jagdishpur,
District- Bhagalpur.
7. Sri Ranjit Kumar Son of Late Bhubneshwar Mandal Resident of Village-
Kankaithi, Post Office- Simariya, Police Station- Jagdishpur, District-
Bhagalpur.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Collector, Bhagalpur.
2. The Anchal Adhikari, Jagdishpur, Bhagalpur.
3. Sri Hari Prasad Bhagat Son of Late Bhagwan Das Bhagat, Resident of
Mohalla- Goldar Patti, Tulsi Ram Lane, Police Station- Nathnagar, District-
Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Diwakar Yadav, Advocate
For Respondent no. 3 : Mr. Indeshwari Pd. Mandal, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 27-03-2025
Heard learned counsel for the parties.
2. The instant petition has been filed by the petitioners
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being aggrieved by the order dated 13.04.2023 passed by
learned Sub Judge VIII, Bhagalpur in Title Suit No. 120 of 2019
whereby and whereunder the application dated 05.08.2022 filed
under Section 151 of the Code of Civil Procedure (in short "the
Code") on behalf of the defendant/respondent 2nd set was
allowed subject to payment of cost of Rs. 2500/- by the
plaintiff/petitioner.
3. Learned counsel for the petitioner submits that the
defendant/respondent 2nd set appeared in the title suit filed by
the plaintiff/petitioner and thereafter vide order dated
08.07.2022
, the learned trial court debarred the defendants from
filing written statement. Subsequently, on 05.08.2022 the
defendants filed an application under Section 151 of the Code
seeking to take on record the written statement of the defendant
filed on 26.02.2021. But the learned trial court without recalling
the order dated 08.07.2022 allowed the application filed by the
defendant/respondent 2nd set. The order was passed and the
written statement was taken on record after expiry of the period
of 90 days prescribed under Order 8 Rule 1 of the Code. The
learned trial court further committed an apparent error on face
of the record when it directed the plaintiff to deposit Rs.2500 as
cost in Nazarat while allowed the application of the
Patna High Court C.Misc. No.739 of 2023 dt.27-03-2025
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defendant/respondent 2nd set. The cost was imposed upon the
defendant/respondent 2nd set for taking on record his written
statement which was filed after delay. Thus, learned counsel
submits that the impugned order is not sustainable and the same
be set aside.
4. On the other hand, learned appearing on behalf of
the respondent 2nd set submits that the defendant 2nd set has filed
his written statement but it was after expiry of the statutory
period of 90 days. This was prior to the order dated 08.07.2022.
So it would be deemed that as the defendant 2 nd set was not
debarred from filing written statement, his written statement
was taken on record but the learned trial court proceeded on the
reasoning that as the defendant/respondent 2nd set did not seek
extension of time, he was statutorily debarred from filing the
written statement. For this reason, the defendant was compelled
to filed an application for taking on record his written statement
which was allowed vide the impugned order dated 13.04.2023.
There is not much delay in filing written statement and even the
Hon’ble Supreme Court in the case of Kailash v. Nankhu &
Ors. reported in (2005) 4 SCC 480 has held that the statutory
provision under Order 8 Rule 1 of the Code regarding the time
for filing a written statement is directory in nature and is not
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mandatory.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. From
perusal of the record it appears that after their appearance, the
defendant filed on record his written statement though it was
after the statutory period of 90 days as provided under Order 8
Rule 1 of the Code which reads as under:
“1. Written statement.__ The defendant shall,
within thirty days from the date of service of
summons on him, present a written statement
of his defence:
Provided that where the defendant fails to file
the written statement within the said 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.”
However, in Salem Advocate Bar Association,
TamilNadu vs Union Of India reported in AIR 2005 SC 3353,
the Hon’ble Supreme Court held that the provision is directory
and not mandatory. In Kailash(Supra), Hon’ble Supreme Court
further held that though the provision is directory, considering
the need of expeditious trial of civil cases, the extension of time
for filing of written statements shall not be granted as a matter
of routine and merely for asking. However, in the present case
as the written statement was already filed on record though
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belatedly and the defendant did not make prayer for extension of
time for taking the same on record exceeding the statutory time
limit provided for filing the written statement, the case of
defendant is that he filed the written statement just after the
lapse of statutory period and was under the impression that he
was not debarred from filing the written statement. So there
does not appear to be willful disobedience of the statutory
provision and deliberate delay on part of the defendant. Further
on this ground, the defendant has made out a case in his favour.
6. So far as, the contention of the learned counsel for
the petitioners about the learned trial court no recalling the ex
parte order is concerned, when the impugned order has been
passed, the order dated 08.07.2022 stands recalled by
implication. Furthermore, perusal of the record shows it has
been noted on the margins of the order sheet that ex parte order
was recalled but it appears the same could not find mention in
the order sheet which bears the signature of the learned
Presiding Officer. Then directing the plaintiff to deposit Rs.2500
is clearly an error because for the fault of the defendant, the
plaintiff could not be penalized and the learned trial court ought
to have corrected this mistake as the same was brought to its
notice vide the application dated 02.03.2024 filed before it.
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7. In the light of the aforesaid discussion, I do not find
any excess of jurisdiction of the learned trial court and hence,
the order dated 13.04.2023 is affirmed subject to modification
that the cost be deposited by the defendant and not by the
plaintiff.
8. Accordingly, the present petition stands disposed
of.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR NAFR CAV DATE N/A Uploading Date 02.04.2025 Transmission Date N/A
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