1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.9912/2007. Mohd.Alsam. VERSUS Smt.Rabia Bibi and Others. 29.01.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Paker Farooq, for the petitioner. Mr.Usman Khan ] Mr.Kapil Mathur ] for the respondents. ***** Heard learned counsel for the parties. The matter has come up on the application No.45309 submitted by the respondents for vacation of the interim order. However, since the submissions on the application and the main writ petition are common and relate to the merits of the case, the writ petition itself is being heard and decided finally with the consent of the learned counsel for the parties. The facts, in brief, are that the respondents filed a suit for eviction against the non-petitioners No.2 and 3 who are the wife and mother-in-law of the petitioner. The suit being one for eviction based upon tenancy. During the pendency of the suit, the present petitioner filed an application for impleadment alleging that he is the tenant and not his wife and mother-in- law, as alleged by the plaintiff. The said application which was filed on 21.03.2003 was allowed by the 2 learned trial court vide order dated 28.11.2003 and accordingly the case was posted for filing the written statement by the present petitioner, the newly added defendant No.3. The petitioner did not file the written statement and ultimately on 29.07.2005 vide Annexure-1, the learned trial court passed an order closing the right of the petitioner-defendant No.3 from filing the written statement. In spite of the order dated 29.07.2005 the matter remained pending and ultimately an application came to be filed before the learned trial court on 06.10.2007 after more than two years by the petitioner-defendant No.3 seeking leave of the court to file the written statement and direction that the written statement may be ordered to be taken on record. The aforesaid application dated 06.10.2007 came to be dismissed by the learned trial court by the impugned order dated 18.10.2007 and it is against the aforesaid order that the petitioner has approached this court in the writ jurisdiction. The submission of the learned counsel for the petitioner is that the counsel who was appearing on his behalf before the learned trial court did not inform him regarding the filing of the written statement and, therefore, he ultimately changed his counsel and moved an application on 06.10.2007. It is also submitted that for the negligence on the part of the counsel, the petitioner ought not to be punished and he may be afforded an opportunity on cost to file the written statement. 3 Learned counsel for the respondent, on the other hand, submitted that the counsel who was appearing on behalf of the petitioner was also the counsel for the defendants No.1 and 2, the wife and mother-in-law of the petitioner and said counsel kept on appearing on behalf of the respondents No.1 and 2 as well as the petitioner throughout the proceedings. He submits that in view of the provisions contained under Order 8 Rule 1 C.P.C. the legislature while introducing the amendment has clearly laid down that with a view to expedite the trial, the written statement should be filed within a period of 90 days unless for the reasons to be recorded in writing such period is ordered to be extended. It is submitted that the present case is one of total negligence on the part of the defendant No.3 for not having filed the written statement for nearly a period of two years after he was impleaded as party and further from 19.07.2005, when the right of the petitioner-defendant No.3 to file written statement was closed till 06.10.2007 the application for taking on record the written statement was filed. Thus, the petitioner in fact failed to take any steps for filing the written statement for four years. Learned counsel for the respondents, therefore, submits that it is not a case which calls for interference so far as the impugned order is concerned in the writ jurisdiction. I have considered the rival submissions made at the Bar as well as considered the provisions of Order 8 Rule 1 C.P.C. The provisions of Order 8 Rule 1 C.P.C. though may not be mandatory but the court cannot 4 lose sight of the fact that the legislature has intended that unnecessary delays and adjournments should not be granted so far as the filing of the written statement is concerned. Of course in deserving cases, where there are sufficient reasons, the court may extended the period but the present one does not appear to be such a case. As has been stated above, the application for impleadment was filed by the petitioner-defendant suo moto on 21.03.2003 after he came to know of the suit being filed against his wife and mother-in-law and at least from that day itself the petitioner-defendant No.3 knew about the filing of the suit and its implication so far as the petitioner is concerned. Having moved an application for being impleaded as defendant, which was allowed by the learned trial court on 28.11.2003, it was the duty of the defendant No.3 to have filed the written statement after having been impleaded as party defendant No.3. Even after the order dated 28.11.2003, for two years, adjournments were sought, may be at the instance of the counsel, but none the less it cannot be said that the defendant was absolved of his responsibility for filing the written statement and ensuring that the written statement is filed. Merely stating that for the fault of the counsel, the client should not be made to suffer does not hold good so far as the facts and circumstances of the present case are concerned. Admittedly, in this case after the order dated 28.11.2003 impleading the present petitioner- defendant No.3 was passed, for two years adjournments were granted by the court for filing the written statement till such time as on 29.07.2005, the 5 court passed an order closing the right of the petitioner-defendant No.3 to file the written statement. Even after the order dated 29.07.2005 (Annexure-1), the petitioner-defendant No.3 failed to take any steps upto 06.10.2007 for over two years when the petitioner filed the present application seeking leave of the court to file written statement. The long period of four years taken by the petitioner-defendant for filing the written statement, in my opinion, is a clear case of negligence on the part of the petitioner and lacks in bonafides. In the facts and circumstance, I find no reason to interfere with the impugned order. The writ petition is accordingly dismissed. The application submitted by the respondent for vacation of the interim order under Article 226(3) of the Constitution of India stands disposed of. The stay application also stands disposed of. The interim order stands vacated. The learned trial court shall now proceed with the trial in accordance with law. (DALIP SINGH),J. Solanki DS, Jr.P.A.