Pradip Kr. Sarkar and Anr v. Arun Chakraborty and 10 Ors

ORDER

10.05.2024

This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the order dated 11.01.2024 passed in Title Suit No.481/2023, whereby the Court of the learned Civil Judge No.2 Page No.# 4/6 (Sr.Division), Kamrup(M) Guwahati had rejected the petition filed by the petitioner to file the written statement against the counter claim.

¶2Taking into account that the order dated 11.01.2024 is not revisable in terms with Section 115 of the Code, this Court for the interest of justice converts it to a proceeding under Article 227 of the Constitution.

¶3This Court has taken note of the fact that on 08.09.2023 the defendants have filed a written statement-cum-counter claim. However, the plaintiff did not file any written statement and filed a petition at a later stage on 11.01.2024, seeking further time for filing the written statement.

¶4This Court has enquired with Mr. P Sarmah, the learned counsel appearing on behalf of the petitioner as to why the written statement was not filed. The learned counsel submitted that the counsel appearing on behalf of the plaintiffs before the learned Trial Court did not receive the written statement cum counter claim from the records and under such circumstances, the petitioners were not aware of the filing of a counter claim.

¶5The learned counsel further submitted that the written statement to the counter claim is ready and can be filed on such date as this Court may fix.

¶6Upon hearing the counsels appearing on behalf of the parties, this Court is of the opinion that the non-filing of the written statement to the counter claim is not the fault on the part of the plaintiffs, but is on account of the negligence on the part of the counsels representing the plaintiffs in the suit. It being well settled that on account of the conduct of the counsels, the party should not suffer, as such, it is the opinion of this Court that the plaintiffs ought not to have been debarred from filing the written statement. Accordingly, this Court interferes with the order dated 11.01.2024 thereby permitting the plaintiffs to Page No.# 5/6 submit their written statement by 15.06.2024 before the learned Trial Court.

¶7This Court, however, is also mindful of the fact that on account of the negligence on the part of the counsels appearing on behalf of the plaintiffs, the proceedings in the suit had been delayed and further the instant proceeding had arisen. Under such circumstances, this Court is of the opinion that some cost has to be imposed in the interest of justice.

¶8Taking into account that the plaintiffs were not at fault, however, it was the fault of the counsels, this Court imposes a cost of Rs.15,000/- upon Mr. P Sarmah, the learned counsel appearing on behalf of the petitioner, who is also the counsel of the plaintiffs before the learned Trial Court. The said amount be deposited by Mr. P Sarmah, the learned counsel appearing on behalf of the petitioners before the learned Trial Court on the date on which the written statement is directed to be filed i.e. on 15.06.2024.

¶9It is further observed that deposit of the said amount of Rs.15,000/- shall be a condition precedent for accepting the written statement to the counter claim. It is made clear that in the circumstance, the counsel does not deposit the cost, the plaintiffs shall deposit the said amount and thereupon recover the same from the said counsel.

¶10With the above, the petition stands disposed of.

¶11Interim orders, if any, stands vacated.

JUDGE Page No.# 6/6 Comparing Assistant

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