1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.3378/2007 {Om Prakash Versus Civil Judge (Senior Division, Fatehpur & Others} Date of Order :: 25th August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. D.P. Pujari for the petitioner None present for the respondents BY THE COURT: None present for the respondents inspite of service of notice. 2. Heard learned counsel for the petitioner. 3. The plaintiff-respondents no. 2 and 3 filed a suit for eviction and recovery of arrears of rent and permanent injunction, wherein the defendant-petitioner appeared on 10th May, 2004 and sought time for filing the written statement. The case was adjourned from time to time, but written statement was not filed and the same was ultimately filed on 15th October, 2004. The plaintiff filed an application under Order 8 Rule 1 readwith Section 151 CPC to the effect that as per amended provisions of CPC, the written statement can be filed within a period of 30 2 days, which can be extended upto 90 days, but written statement by defendant in the present case has not been filed within the time prescribed by CPC, therefore, the same may not be taken on record. The trial court allowed the application and directed that written statement filed by the defendant be detached from the record vide order dated 28th March, 2007, which is impugned in this writ petition preferred on behalf of the defendant-petitioner. 4. The learned counsel for the petitioner contended that written statement was filed by him on 15th October, 2004, which was taken on record. The provisions relating to Oder 8 Rule 1 CPC are not mandatory in nature as held by the Hon'ble Supreme Court, therefore, the trial court committed an illegality in allowing the application filed by plaintiff-respondents no. 2 and 3, therefore, the order passed by the trial court be set-aside and written statement filed by the petitioner be taken on record. So far as delay of proceedings is concerned, the plaintiff can be compensated by awarding suitable cost. 5. I have considered the submissions of learned counsel for the petitioner and examined the impugned order passed by the trial court. 3 The date of appearance of defendant-petitioner and filing of written statement is clear from the impugned order passed by the trial court. The trial court allowed the application of the plaintiff on the ground that as per provisions of Order 8 Rule 1 CPC, the time limit for filing the written statement was 30 days, which could have been extended by the court for a period of 90 days. 6. The Hon'ble Supreme Court in R.N. Jadi & Brothers and Others Versus Subhash Chandra {(2007) 6 Supreme Court Cases 420} considered the provisions of Order 8 Rule 1 and proviso thereto and held that these provisions are only directory. They do not take away the powers of the court to take written statement on record though filed beyond 90 days. They only cast an obligation on defendant to file written statement within the time provided for. 7. In view of above authoritative pronouncement of Hon'ble Supreme Court, I find that the learned trial court committed an illegality in allowing the application of the plaintiff-respondents and the impugned order is, therefore, liable to be set-aside and is hereby set-aside. 8. Consequently, the writ petition is 4 allowed. The impugned order dated 28th March, 2007 is set-aside. The written statement filed by the defendant-petitioner is ordered to be taken on record on payment of cost of Rs. 3000/-, which will be paid by the defendant- petitioner within a period of thirty days from today. In case the amount of cost is not accepted by the opposite party, then the said amount will be deposited in the trial court. It is also made clear that in case the payment of cost is not made, as directed above, within the time period allowed, then written statement, as directed, will not be taken on record. 9. So far as this writ petition is concerned, the cost is made easy. 10. In view of above, there is no need to pass any order on the second stay application and the same stands disposed of. (NARENDRA KUMAR JAIN),J. DK