1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.7245/2006 {Chauthu Ram Khatik @ Chauth Mal Versus Vijay Kumar & Others} Date of Order :: 17th July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. H.P. Singh for the petitioner Mr. Prashant Joshi for the respondents no. 1 to 5 BY THE COURT: The learned counsel for the plaintiff- respondents no. 1 to 5 submits that they are only contesting party, therefore, service on other unserved respondents who are only formal parties may be dispensed with and case be heard finally as further proceedings of the trial court were stayed by this Court while admitting the writ petition on 8th November,2006. 2. The prayer is allowed. The service of other formal unserved respondents is dispensed with. 3. Heard learned counsel for the parties. 4. The plaintiff-respondents filed a suit for cancellation of sale deed and declaration against defendant-respondents wherein the present petitioner field an application under Order 1 Rule 10 CPC which was allowed by the 2 trial court vide order dated 12th January, 2004 and he was impleaded as defendant no. 8 in the suit. The case was fixed for filing his written statement but the same was not filed on 17.1.2006, 23.2.2006, 2.5.2006 and even after granting time on payment of cost i.e. on 20.7.2006. In these circumstances the trial court closed the written statement of the petitioner. The said order is under challenge in this writ petition preferred on behalf of the defendant no. 8. 5. The learned counsel for the petitioner contended that although the trial court had granted sufficient opportunity to file the written statement but due to non availability of the complete record, the written statement could not be filed. He contended that although there is a limitation of 90 days for filing the written statement but that is only for defendant and so far as the powers of the court are concerned, the court has ample powers to allow the defendant to file written statement even after expiry of period of 90 days. He contended that a last opportunity may be granted to him to file written statement on payment of cost. 6. The learned counsel for plaintiff- 3 respondents has defended the impugned order and prayed for dismissal of the writ petition. 7. I have considered the submissions of learned counsel for the parties and examined the impugned order dated 20th July, 2006 passed by the trial court from which it is clear that a reasonable opportunity was granted to petitioner to file his written statement but inspite of granting time on payment of cost, he did not file his written statement, therefore, there was no alternative for the trial court except to close the written statement. 8. The Hon'ble Supreme Court in R.N. Jadi and Brothers Versus Subhash Chandra 2007 (6) Supreme Court cases 420, while considering the provisions of Order 8 Rule 1 and proviso thereto of Code of Civil Procedure held that these provisions are directory in nature and they did not take away the powers of the court to take the written statement on record though filed beyond 90 days. The provisions cast an obligation on defendant to file written statement within the time provided for. Although the trial court had granted ample opportunity to the petitioner to file written statement, therefore, I do not find any error in the order passed by the trial court but in 4 the interest of justice, I think it fit and proper that one last opportunity may be granted to the defendant-petitioner to file his written statement on payment of cost. 9. Consequently the writ petition is allowed. The defendant no. 8-petitioner is permitted to file his written statement in the trial court on or before 18th August, 2008 on payment of cost of Rs. 3000/-. the written statement will be taken on record if it is filed within the time fixed by this Court and only after payment of cost, otherwise the same will not be taken on record and no further opportunity in this regard will be granted to the petitioner. 10. There will be no order as to costs. (NARENDRA KUMAR JAIN),J. DK