-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.7319 of 2003 Abid Hussain son of late Shri Aziz Hussain VERSUS AlladinKhan son of late Shri Nanhe Khan and Others Date of Order :::: March 5th 2010 Hon'ble Mr. Justice Dalip Singh Mr. Ajeet Bhandari, Counsel for the Petitioner Mr. G.C. Garg, Counsel for the Respondents *** By the Court : Heard learned counsel for the parties. Matter has come up on the second stay application, but since the submissions on the second stay application as well as the stay application and the main petition are same, learned counsel for the parties have submitted that the writ petition itself may be heard and decided as the suit is of the year 2001 and is still pending for considerable period of time. At the request of the learned counsel for the parties the writ petition itself is being heard and decided. The aforesaid writ petition has been filed challenging the impugned order dated 30.07.2003 by which the application submitted by the petitioner-defendant on -2- 24.03.2003 for taking on record the written-statement has been rejected by the learned trial Court. Learned counsel for the respondents submitted that this Court while deciding the first stay application had taken note of the fact that the suit had been filed in 2001 and on account of lapses of the defendant-petitioner the trial has remained pending for more than three-years. Learned counsel for the respondents, therefore, submitted that since this Court had already on an earlier occasion dealt with this aspect of the matter this Court should not now take a different view while deciding the writ petition. Learned counsel for the petitioner submitted that the above observations made by this Court are not based on record as in fact the defendant had only been served in September 2002 and thereafter the case had been fixed for filing of the written-statement and the last date fixed as 24.03.2003, on which date the learned trial Court passed the order closing the defence of the defendant as the defendant had failed to file the written-statement. Therefore, it was submitted by the learned counsel that so far as the defendants are concerned, they have only come into the picture from September 2002 till 24th February 2003 and not for the period of three-years as was submitted before this Court earlier. The aforesaid facts are not disputed by the learned counsel for the respondents. However, the learned counsel for -3- the respondents drew the attention of the Court to the fact that earlier also on three occasions the learned trial Court had granted time to the defendant-petitioner for filing the written- statement on payment of costs and in-spite of the aforesaid opportunites having been granted the petitioner had failed to file the written-statements. It is for this reason that the learned trial Court has rejected the application submitted by the defendant-petitioner and has refused to take the written- statement filed by the defendant-petitioner on record. I have given my thoughtful consideration to the aforesaid submissions and have also considered the order passed by the learned trial Court dated 30.07.2003 rejecting the application to take on record the written-statement filed along with the application. As has been rightly admitted by both the sides that so far as the defendants are concerned, the defendants have come in the picture after service of summons only in September 2002 and not since very inception of the suit in 2001 as observed earlier. As regard the earlier opportunities having been granted on payment of costs is concerned, suffice it to say that while the same are relevant consideration for the purposes of affording an opportunity for filing the written-statement, however, this Court has only to consider whether there was sufficient cause, which prevented the petitioner from filing the -4- written-statement on 24.03.2003, which was the date fixed by the trial Court and not the conduct of the petitioner-defendant prior to the aforesaid date as those had already been taken into account while adjourning the case to 24.03.2003. As far as earlier dates are concerned, the learned trial Court itself has found it in the interest of justice to afford an opportunity to the defendants to file the written-statement, though on the payment of costs and adjourned the case to 24.03.2003 and it is the reason for not filing the written- statement on 24.03.2003, which must be considered. So far as the circumstances, which prevented the defendants from filing the written-statement on 24.03.2003 is concerned, suffice it to say that the learned counsel for the petitioner pointed out that on 24.03.2003 the defendant had gone to out of station and could not contact his counsel for the preparation of the written-statement and nor could he inform his counsel before leaving Jaipur that he had proceeded out of Jaipur for some urgent work and, therefore, the counsel should make a request to the learned trial Court for adjournment of the aforesaid purpose. So far as the above submission is concerned, which was made in the application the said fact has not been denied by the plaintiff by way of any counter affidavit. Therefore, there is no reason to dispute the contention of the defendant that he had to leave Jaipur for some urgent work and, therefore, he -5- could not contact his counsel for preparation of the written- statment and filing the same in Court. While it is no doubt true that the intention of the legislature has been while amending the provisions of Order 8 Rule 1 C.P.C. to restrict the delays in filing the written- statement and thereby unnecessarily delaying the trial. However, the provision has been held to be directory. In the present case the submission is of justice tempered with mercy. In the present case the written-statement has been filed, though on the next date. In case, the learned trial Court would have taken on record the written-statement, which was filed along with the application on payment of costs etc., the valuable time of more than seven-years would not have been lost. Even otherwise the approach must be to decide the case on merits rather than ex-parte. In the facts and circumstances, therefore, I deem it just and proper to allow this writ petition and direct that the written-statement, which has already been filed by the defendants, along with his application be taken on record. The written-statement shall be taken on record subject to the payment of costs of Rs.5000/- by the defendants to the plaintiffs on the next date already fixed before the learned trial Court along with any outstanding amount awarded as costs by the learned trial Court. -6- However, in case it is made clear that the defendant fails to pay the amount of costs, the aforesaid opportunity, which has been granted by this Court shall stand cancelled. The writ petition as well as the second stay application stand allowed as indicated above. (Dalip Singh), J. Ashok/