1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 6155/2008 {Bhawani Singh & Another Versus The Presiding Officer & Others} Date of Order :: 25th July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Ms. Gayatri Rathore for the petitioners Mr. S.K. Pareek for the respondents BY THE COURT: Admit. 2. Heard learned counsel for the parties. 3. This writ petition on behalf of defendants no. 4 & 5 Bhawani Singh and Devendra Singh is directed against the impugned orders dated 28th May, 2008, 8th February, 2006 and 31st March, 2005, whereby the trial court closed the written statement of defendants no. 3 to 5, dismissed the application to reopen the written statement and further dismissed the application for recalling the earlier orders. 4. The plaintiff-respondent no.2 Yogendra Singh filed a suit for declaration, permanent injunction and cancellation of sale deed in the trial court, wherein the defendants-petitioners failed to file their written statement inspite of granting number of opportunities, therefore, 2 trial court closed their written statement on 31st March, 2005. Thereafter they moved an application under Section 151 CPC on 9th July, 2005 to allow them to file their written statement but the same was dismissed on 8th February, 2006. Again an application for recalling of the earlier orders dated 8th February, 2006 and 31st March, 2005 was filed but the same was also dismissed by the trial court on 28th May, 2008. 5. Learned counsel for the petitioners contended that the file of trial court had gone to appellate court in an appeal filed against an order passed on an application under Order 39 Rule 1 and 2 CPC. Thereafter writ petition was filed in the matter, therefore, petitioners remained under the impression that unless the matter is decided by higher courts, there is no need to file a written statement. It is further contended that the defendants went to meet their counsel but they could not meet him and matter was delayed bonafidely. It is, therefore, contended that looking to the controversy involved in the present suit, a last opportunity of filing the written statement may be granted to the petitioners. So far as the delay of proceedings is concerned, 3 learned counsel contended that the same can be compensated by awarding cost to the plaintiff. 6. Learned counsel for the plaintiff- respondent contended that in the facts and circumstances of the case, the trial court was fully justified in passing the impugned order. However, he contended that one last opportunity fixing a date and time may be granted to the defendants-petitioners to file written statement on payment of heavy cost. 7. I have considered the submissions of learned counsel for the parties and also examined the impugned order dated 28th May, 2008 alongwith other documents placed on record and after considering the same, I find that learned trial court was fully justified in passing the order dated 28th May, 2008 in view of facts and circumstances narrated above. It is a case of gross negligence on the part of the defendants-petitioners. However, learned counsel for both the parties contended that at present the suit is pending in the trial court for plaintiff's evidence only, therefore, looking to the controversy involved in the present suit as well as that case is fixed only for plaintiff's evidence, I think it fit and proper that ends of justice will meet in case 4 one last opportunity is granted to the defendants-petitioners to file their written statement on payment of cost. 8. Consequently the writ petition is allowed. The defendants-petitioners are permitted to file their written statement within a period of 15 days from today in the trial court on payment of cost of Rs.5000/-, which will be paid before filing the written statement, failing which the written statement will not be taken on record and no further opportunity in this regard may be granted to the petitioners. 9. So far as this writ petition is concerned, the cost is made easy. (NARENDRA KUMAR JAIN),J. DK