.Si^si c IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.t W^. (227) N0.^2Z°/2010 PETITIONESRS DEFENDAMTS 1 °..•• i\x ^^ Xr^(y^ '.^t."< 9-"' yc^o) &y '.••^t^9- ^y^oy ^ ^-\^ '^. ^'^<^- *\:.-"' e^~ WERSES RESPQNDET 1. Sohan S/o Besahu Bai^ah, Age - 50 Years 2. Smt Kalawati w/o Sohan Bai^ah, Age - 48 years 3. RaUnun S/o Dhansai Bargah, Age - 55 Year 4. CSodhu S/o Sohan Bargah, Age - 20 Year AU resident of village Rakeli, P.S. - Darinia, TahsU - Ambikapur, Distt. -Sarguja (C.G.) Mahinath S/o Somar Sai, Age about 30 years, Adopted son of patiram, R/o Village - Rakeli khatanpara, P.S. - Darima, Tahsil - Ambilapur, Distt. Sarguja (C.G.) 'D WmT PETITION UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA FOR ISSUE OF AN APPROPMATE wmr IN THE NATURE QF MANDABIUS/CERTIORARY ETC. OR DIRECTION/ORDER IN THB UKENATURE ETC. ^p o^ fflCH COURT OF CHHATTISGARH AT BILASPUR S.B: IfonLbleShriPrashantKumarMishra Writ Petition (227) No. 2710/2010 PETITIONERS RESPONDENT Sohan and otfiers Versus Mahinatii Appearance: Shri Neeraj Mehta, counsel for the petitioners. Shri A.K. Prasad, counsel for the respondent. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ORALORDER (27.10.2010) The trial court, by tfae impugned order dated 22/12/2007 has closed the petitioners right to file written statement. (2) Shri Neeraj Mehta, leamed counsel for the petitioners would submit tiiat earlier the matter was fixed before trial court for submitting compromise application as both tfae parties were trying to setde the dispute amicably. He would farther submit that when the negotiations failed, opportunily was sought for filing written statement and by the said time the period of 90 days time was over, therefore the trial court has closed the petitioners right to file ^vritton statement without properly appreciating the background in which ifae vdelay in filing the written statement had taken place. (3) He would submit that if the defendante are not allowed to file written srtatement they may suffer a decree without raising any defence. (4) On the other hand, Shri A.K. Prasad, leamed counsel appearing for the respondenl/plaintiff would submit that the defendants were aware much before the date on which the impugned order was passed about the failure of the negotiations and therefore they should have taken steps to file written statement within Ae time permissible in law and that Ihe present is not a case where the trial court has committed any error in exercise ofjurisdiction. (5) On perusal ofthe order sheets ofthe trial court, it would appear that the leamed counsel for the parties made statement on 12/09/2007 that the parties shall submit a compromise application. Adjoumment on the same ground was sought before the trial court on 25/09/2007 and 12/09/2007. Thus, it would be apparent fi'om the order sheet that the parties have eatered mto negotiations for reaching a out of court settlement and the said reason assignsd by the petitioners for seeking time to file written statement was bonafide and is not concocted one. (6) In the matter of Kaflash Vs. Nanhku and others (2005) 4 SCC 480 the Hon'ble Supreme Court has held that the provisions contained in Order 8 Rule 1 and the proviso thereto, as amended by CPC Amended Act, 2002, are directory in nature and not mandatory. Though, it has been observed that the time schedule should be vadhered and departure should be by way of exception only yet applying ratio in the facts ofthe case, it would appear that fte reason assigned for failure ofthe petitioners to file written statement within the time allowed under Order 8 Rule 1 ofCPC was bonafide and that ifthe trial proceeds without the written statement the petitioners are likely to suffer irreparably and that it shall occasion failure ofjustice. (7) In the result, this court is of the considered opinion that the present is a fit case for exercise ofjurisdiction under article 227 ofthe Constitution oflndia. (8) Consequentiy, the impugned order is set aside. The petitioners shall now file their wriften statement within a period of one month from today. (9) The written statement shall be taken on record and the trial shall proceed in aecordance with law. (10) The writ petition is allowed. Sd/1- Prashant Kumar Mishra Judge (r