1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER Kasiram @ Kasidas Vs. Civil Judge (JD) Shrimadhopur, Sikar (S.B. Civil Writ Petition No.5953/2010) Date of Order :- April 26, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Mahipal Kharra, for the petitioner. The petitioner has challenged the order dated 09.04.2010 passed by the Civil Judge (Junior Division), Shrimadhopur, District Sikar, whereby the learned Magistrate has dismissed the application filed by the petitioner-plaintiff under Order 8 Rule 1 CPC. It is the case of the petitioner that on 04.08.2009, he had instituted a suit for declaration of a Will, dated 28.05.2005, as null and void and for permanent injunction in respect of properties described in the plaint. The notices were issued to the defendant on 06.08.2009. The case was adjourned till 12.08.2009. On 12.08.2009, the defendant No.1, Mewaram, had put in appearance through his counsel and sought time for filing the written statement. According to the petitioner, since the defendant No.1 did not file his written statement within the stipulated period of ninety days, he moved an application under Order 8 Rule 1 CPC for closing the evidence of the defendant. However, vide order dated 09.04.2010, the learned Magistrate has dismissed the said application. Hence, this petition before this Court. 2 Mr. Mahipal Kharra, the learned counsel for the petitioner, has contended that sufficient opportunities had been given to the defendant for submitting his written statement. Secondly, he had failed to submit the written statement within the stipulated period of ninety days. Thirdly, the learned Magistrate has erred in observing that the written statement was submitted on 19.01.2010, whereas the order-sheet dated 19.01.2010 does not indicate this fact. Therefore, the learned Magistrate has erroneously dismissed the application. Heard the learned counsel for the petitioner and perused the impugned order as well as the order-sheet dated 19.01.2010. In catena of cases, the Hon'ble Supreme Court has held that the period of ninety days for submission of written statement, is merely directory and is not mandatory in nature. Therefore, the defendant cannot be pre-empted from filing his written statement solely on the ground that the written statement is being filed beyond the stipulated period of ninety days. Moreover, the defendant has an equal right to place his side of the story before the trial court. Since he does have the right to receive justice, at the hands of the court, the court should not shut the door on his face in a hyper-technical manner. Furthermore, a bare perusal of the order-sheet dated 19.01.2010 clearly reveals that the Presiding Officer had been sent for training to Bhopal. Therefore, the said order was not written 3 under the supervision of the Presiding Officer, but must have been written by his reader. Therefore, merely because the order- sheet does not record the fact that the written statement was submitted on that day, the Presiding Officer cannot be faulted for the same. Since the written statement has been submitted, even if beyond a period of ninety days, even then the learned Magistrate is legally justified in dismissing the application under Order 8 Rule 1 CPC. Hence, there is no merit in this writ petition. It is, hereby, dismissed. (R.S.CHAUHAN)J. Manoj Solanki-