// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5948/2004 Dal Chand Verma and Narendra Kumar Verma ...Defendant-Petitioners Versus Shri Lallu Narain Verma ...Plaintiff-Respondent AND Additional Civil Judge (JD) & Judicial Magistrate, First Class No.1, Jaipur City, Jaipur ...Proforma-Respondent Date of Order ::: 11.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Keshav Agarwal, Counsel for defendant-petitioner Shri Alok Garg, Counsel for plaintiff-respondent #### By the Court:- Heard learned counsel for the parties. Plaintiff-respondent No.1 Shri Lallu Narain Verma filed a suit for permanent injunction in respect of disputed property, in the trial court against the defendant-petitioners wherein the defendants were served with summon and they put their appearance in the trial court on 3rd September, 2003. Time was granted to them for filing written-statement but they did not file written-statement and ultimately the trial court closed the written- statement on 20th November 2003 and fixed the case for plaintiff's evidence. Thereafter on 23.03.2004 the defendants filed an application along-with written- statement to take the same on the record but the said application was dismissed vide order dated 2nd June, // 2 // 2004 (Annexure-3), which has been challenged by the defendants in the present writ petition under Article 227 of the Constitution of India. The learned counsel for the petitioners contended that the defendants put their appearance before the trial court on 3rd September, 2003, and even before the expiry of 90 days i.e. on 03.12.2003 the written statement was closed on 20.11.2003 itself. He contended that looking to the nature of controversy involved in the present suit it is necessary that written-statement filed by the defendant-petitioner be taken on the record. The writ petition has been contested by the learned counsel for the respondent by contending that the petitioners waited for about four months even after closure of the written statement and no immediate application was filed by them along-with the written statement. He also contended that sufficient opportunity was granted to defendants to file written statement, therefore, the trial court was justified in passing the impugned order rejecting the application of the petitioners. He, therefore, prayed that there is no merit in the writ petition and the same may be dismissed. I have considered the submissions of learned counsel for both the parties and examined the annexed documents including the impugned order dated 02.06.2004 rejecting the application of the petitioners. There is no dispute in between both the // 3 // parties that on 03.09.2003 the defendants put their appearance before the trial court after service of summon of the plaint but they did not file the written-statement on several dates fixed for it and filing thereof was closed on 20.11.2003. It is correct that thereafter the case was fixed for plaintiff's evidence and on five occasions the counsel for the defendants sought time for cross- examination of the plaintiff but no written-statement was filed and it was filed only on 23rd March, 2004. It appears that there is negligence on the part of the defendants but the right of written-statement is also a valuable right and when an application was moved by the petitioners then it should not have been rejected and, so far as delay on the part of the defendants in filing written statement is concerned, it could have been compensated by way of cost. Therefore, I am of the view that the trial court has committed an illegality in passing the impugned order rejecting the application of the petitioners. The application ought to have been allowed in the interest of justice and the written statement should have been taken on the record. Consequently, I allow this writ petition and set-aside the order dated 02.06.2004 passed by the Additional Civil Judge (Junior Division) and Judicial Magistrate, First Class No.1, Jaipur City, Jaipur on payment of costs of Rupees two thousand. The trial court is directed to take the written statement of the defendant-petitioners on the record and proceed // 4 // further with the case. The defendant-petitioners are directed to pay the amount of costs within a period of one month from today failing which the written- statement, as directed above to be taken on the record, will not be taken on record. There will be no order as to costs so far as this writ petition is concerned. The matter has already been delayed for about three years because of the defendants, therefore, the trial court is directed to decide the suit expeditiously. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.5102/2004 In S.B. Civil Writ Petition No.5948/2004 Dal Chand Verma and Narendra Kumar Verma ...Defendant-Petitioner Versus Shri Lallu Narain Verma ...Plaintiff-Respondent AND Additional Civil Judge (JD) & Judicial Magistrate, First Class No.1, Jaipur City, Jaipur ...Proforma-Respondent Date of Order ::: 11.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Keshav Agarwal, Counsel for defendant-petitioner Shri Alok Garg, Counsel for plaintiff-respondent #### By the Court:- In view of the order passed in the writ petition, the stay application, filed therewith, stands disposed of. (Narendra Kumar Jain) J. //Jaiman//