// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.9168/2005 Pooran S/o Jawali and Another Versus Sugar Singh S/o Shri Hareti and Another Date of Order ::: 14.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri J.P. Goyal with Ms. Manisha Surana, Counsel for petitioners Shri D.S. Choudhary, Counsel for respondent No.1 #### By the Court:- Admit. Heard learned counsel for the parties. Plaintiff-respondent No.1 filed a suit for permanent injunction wherein summon was served on the defendant-petitioners and the case was fixed for filing the written- statement on 21st June, 2004. The defendants sought time for filing written-statement from time to time and it was filed on 2nd September, 2005 along-with an application to take the same on the record. The trial court, vide its order dated 2nd September, 2005 rejected the application filed by the defendants and passed an order that the written-statement has been // 2 // filed after the expiry of the period of 90 days, therefore, the same will not be taken on the record. The said order is under challenge in this writ petition preferred on behalf of the defendants. The learned counsel for the petitioners contended that the trial court itself granted time from time to time for filing the written- statement, therefore, the petitioners remained under impression that the time to file written-statement has been extended and thereafter the same was filed on 2nd September, 2005 which should have been taken on the record. He further contended that the provisions relating to Order 8 Rule 1 CPC are directory in nature and the trial court committed an illegality in not taking the written-statement on the record. So far as the delay of proceedings is concerned, he contended that the same could have been compensated by way of costs to the plaintiff. The learned counsel for the plaintiff- respondent contended that the suit was filed on 17th June, 2004 and summon was served immediately on the defendants but they did not file the written-statement from 21st June, 2004 to 2nd September, 2005 resulting in delay of // 3 // proceedings of the trial court. He further contended that the Legislature has prescribed the period of 90 days as limitation for filing the written-statement, therefore, the trial court rightly rejected the application of the defendants to take the written-statement on the record. I have heard the learned counsel for the parties and examined the impugned order passed by the trial court. The written-statement has already been filed by the defendants on 2nd September, 2005. The question for consideration is only to the extent as to whether after expiry of the period of 90 days, the defendants' written- statement can be taken on the record, or not? No doubt, the Legislature has prescribed the period of 90 days for filing the written- statement under Order 8 Rule 1 CPC but the said provision has been considered by the Hon'ble Supreme Court in R.N. Jadi & Brothers Vs. Subhashchandra 2007 (6) SCC 420 , wherein the Hon'ble Apex Court held that the provisions of Order 8 Rule 1 CPC do not take away the powers of the court to take written- statement on the record though filed beyond 90 days. The provisions cast an obligation on the // 4 // defendant to file written-statement within the time provided for. In view of the above decision of the Hon'ble Apex Court, the defendant was under an obligation to file the written-statement within a period of 90 days but the powers of the Court are not taken away to take the said written-statement on the record if it is filed after a period of 90 days. The right to file the written-statement is a valuable right of the defendant, therefore, in the interest of justice, I think it fit and proper to direct the trial court to take the written-statement filed by the defendant on the record. So far as the delay of proceedings is concerned, the amount of costs can be imposed on the defendants. Consequently, the writ petition is allowed. The impugned order dated 2nd September, 2005, passed by the trial court is set-aside. The written-statement filed by the defendant-petitioners will be taken on the record subject to payment of costs of Rs.3000/- to be paid by the defendants to the plaintiff within a period of one month from today. In case the amount of costs is not paid then the said written-statement will not be // 5 // taken on the record, as directed above. There will be no order as to costs, so far as this writ petition is concerned. (Narendra Kumar Jain) J. //Jaiman//