// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5921/2004 Maduram S/o Shri Nandram Versus Desh Raj S/o Shri Fatehsingh and Others Date of Order ::: 23.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Nalin Kumar Sharma, Counsel for petitioner Shri V.S. Yadav, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. The plaintiff-respondents No.1 to 3 instituted a suit for declaration and permanent injunction in respect of disputed property in the trial court wherein the defendant-petitioner filed his written-statement on 9th February, 2004. On the same day, the plaintiffs filed an application under Order 8 Rule 10 read with Section 151 CPC to the effect that the written-statement has been filed after expiry of the period of limitation of 90 days, therefore, the written-statement may not be taken on the record. The trial court, vide order dated 24th July, 2004 passed an order that written-statement was filed after expiry of the period of limitation of 90 days, therefore, the same will not be taken on the record and fixed the suit for plaintiffs' evidence. The said order is under challenge in this writ petition preferred by the defendant. The learned counsel for the defendant-petitioner // 2 // contended that the case was fixed for defendant's written- statement on 15th January, 2004 but it could not be filed and thereafter the case was fixed on 9th February, 2004 for passing appropriate order. However, the written-statement was filed on 9th February, 2004. He contended that the right of the defendant to file a written-statement is important and valuable right and it should not have been denied by the trial court even if there was some delay in its filing. He contended that the provisions in this regard are only directory in nature and the trial court committed an illegality in passing the impugned order which is liable to be set-aside. He further contended that so far as the delay of proceedings in the trial court is concerned, the same could have been compensated by the trial court by awarding costs to the plaintiff. The impugned order has been defended by the learned counsel for the respondents. I have considered the submissions of learned counsel for the parties in the light of impugned order dated 24th July, 2004 and other proceedings of the trial court from 15th January, 2004 to 27th May, 2004 placed on the record and, after considering the same, I am of the view that the trial court has committed an illegality in not taking on the record the written-statement filed on behalf of the defendant. The provisions in this regard are only directory in nature and the application filed by the plaintiffs under Order 8 Rule 10 read with Section 151 of the CPC ought to have been rejected and the written-statement filed by the defendant should have been taken on the record. // 3 // Consequently, the writ petition is allowed. The impugned order dated 24th July, 2004 passed by the trial court is set-aside. The written-statement filed by the defendant-petitioner is taken on the record subject to payment of costs of Rs.3000/- to be paid by the defendant to the plaintiffs within a period of one month from today. It is made clear that in case the payment of costs is not made, as directed above, within a period of one month then it will be presumed that the written statement has not been taken on the record and no further opportunity in this regard will be granted to the defendant. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman//