1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: Prabhu Lal & Anr. Vs. Bharat Kumar S.B. CIVIL WRIT PETITION NO.11472/2010 Date of Order :: 22nd December 2010 PRESENT HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.P.R.Mehta for the petitioner ::: BY THE COURT: By way of this writ petition, the plaintiffs-petitioners seek to question the order dated 19.10.2010 (Annex.2) passed by the Civil Judge (Senior Division), Sagwara in Civil Original Suit No.53/2002 whereby the written statement filed by the defendant-respondent has been taken on record. It appears that in the suit for perpetual and mandatory injunction filed by the plaintiffs-petitioners on 18.07.2002, the defendant-respondent was served on 26.07.2002; and adjournments were granted for filing of written statement on 30.08.2002 and on 11.10.2002. Further, on 11.10.2002, another adjournment was granted for filing the written statement on costs of Rs.100/-. However, for the defendant failing to comply, his right of filing the written statement was closed on 13.12.2002. It appears from the material placed on record that the matter was thereafter fixed on 14.02.2003 when the counsel for the plaintiffs moved an application under Section 65 of the Evidence Act and the counsel for the 2 defendant moved an application under Order VII Rule 11 (e) CPC. After some adjournments, ultimately on 23.01.2004, the plaintiffs-petitioners filed the duplicate copy of the plaint and deposited the costs of Rs.100/-; and the matter was adjourned for consideration of the application under Section 65 of the Evidence Act. Thereafter on 05.03.2004, an application was moved by the defendant for filing the written statement. It has appeared in the impugned order that the defendant did file his written statement on this date i.e., 05.03.2004. After a few more adjournments, the counsel for the defendant moved an application under Order VIII Rule 9 CPC on 25.02.2005 and then, this application was not pressed on 06.04.2007 but on this very date, the counsel for the defendant moved another application under Order VIII Rule 1 CPC. Thereafter, on 18.05.2007, the counsel for the defendant did not press on the application moved on 05.03.2004. The matter was, thereafter, adjourned several times for consideration of the application moved by the defendant under Order VIII Rule 1 CPC that has ultimately been allowed by the learned Trial Court by the impugned order dated 19.10.2010. The learned Trial Court, with reference to the cited decisions, observed that the provisions relating to taking of written statement on record were directory in nature. The learned Trial Court further observed that the plaintiff had not even filed the plaint in duplicate whereupon the defendant moved the application under Order VII Rule 11 CPC and thereafter, on 23.01.2004, the duplicate copy of the plaint was 3 taken on record on costs. Thus, according to the learned Trial Court, the suit came to be properly instituted only on 23.01.2004 and the written statement was indeed filed on 05.03.2004. The learned Trial Court observed that the written statement was on the file for the last six years and it would be rather unjust not to take the same on record. The learned Trial Court, accordingly, allowed the application and took the written statement on record. Seeking to challenge the order so passed by the learned Trial Court, it is contended on behalf of the petitioners that the date of filing of duplicate copy of the plaint, i.e., 23.01.2004, cannot be taken as the date of filing of the suit. According to the petitioners, the suit was filed way back on 18.07.2002 and when the right of the defendant to file the written statement was closed after extending enough opportunities, there was no reason for the Trial Court to review its earlier order and to take the written statement on record. It is further submitted that the defendant having not pressed the applications dated 05.03.2004 and 25.02.2005, the right of filing the written statement could not have been re-opened. The learned counsel for the petitioners has referred to and relied upon the decision of the Hon’ble Supreme Court in the case of Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Store Ltd. & Ors.: 2007 DNJ (SC) 3051. Having heard the learned counsel for the petitioners and having perused the material placed on record, this Court is unable to find even a wee bit of reason to entertain this writ petition. 4 It has been emphasized time and again by the Courts that the rules of procedure are handmaids of justice; and the approach of the Courts is essentially to consider and decide the matter on merits rather than permitting any party to stand on technicalities. In this case, true it is that the written statement came to be filed only on 05.03.2004 and true further it is that on behalf the defendant, multiple applications were moved for taking the written statement on record and two of them were not pressed on 06.04.2007 and 18.05.2007. However, on 06.04.2007, even while not pressing on the application dated 25.02.2005, the defendant did move the other application under Order VIII Rule 1 CPC that has been allowed by the order impugned. Even if the defendant had been indiscreet in moving such repeat applications, the substance of the matter could not have been ignored by the learned Trial Court that the written statement had indeed been filed on 05.03.2004 and even on the date of passing of the impugned order dated 19.10.2010, the matter was only at the initial stage. In the position of record obtaining in this case, the learned Trial Court has rightly observed that to rule the written statement out from consideration would be unjust and against the interest of justice. Even if the matter is examined from a technical point of view, as sought to be insisted by the plaintiffs-petitioners, it is apparent that the duplicate copy of the plaint was filed by them only on 23.01.2004. The requirements regarding filing of duplicate copy of plaint do not stand as of mere formality because for a proper institution of the suit, the plaint is 5 required to be presented (per Section 26 CPC) in the manner prescribed. The manner prescribed (per Rule 1 of Order IV CPC) is that the plaint has to be presented in duplicate. The consequence of not filing the plaint in duplicate are seen in Rule 11 (e) of Order VII CPC where the plaint is required to be rejected when not filed in duplicate. Even though filing of duplicate copy of plaint appears to be a requirement of formal nature, the consequence for non-compliance is none less than rejection of the plaint. The learned Trial Court was, therefore, right in observing that such lacuna itself having been cured by the plaintiffs only on 23.01.2004, the written statement filed on the next date i.e., 05.03.2004 deserves to be taken on record. The decision in Aditya Hotels (P) Ltd. (supra) as referred by the learned counsel for the petitioners has no application to the facts of the present case. It is not that the Trial Court has not assigned any reason for taking the written statement on record. On the contrary, the Trial Court has assigned cogent and convincing reasons for the course adopted by it. The impugned order does not suffer from any jurisdictional error and no case for interference in writ jurisdiction is made out. The writ petition fails and is, therefore, rejected. (DINESH MAHESHWARI), J. MK