1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.4425/2008. Ghanshyam Sharma. VERSUS A.D.J. No.2, Alwar and Another. 10.04.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.R.K.Mathur, for the petitioner. Mr.Mohit Gupta, for the respondent No.2. ***** Heard learned counsel for the parties. By the impugned order, the plaintiff's application filed before the learned trial court to strike out the defence of the defendant for not having filed the written statement within the prescribed period of ninety days was allowed. The petitioner has challenged the aforesaid order in this writ petition. It is submitted by the learned counsel for the petitioner that while it is true that the written statement was required to be filed within 90 days, in the facts and circumstances of the present case, there was a delay of only ten days inasmuch as on 28.09.2005 an order for proceeding ex-parte was passed against the defendant-petitioner as he failed to appear before the court on the date fixed. The ex-parte order was set aside vide order dated 21.03.2006 and the time was allowed to the petitioner to file the written statement on 24.04.2006 and the written 2 statement was filed on 19.05.2006. Thus, in all it is contended by the learned counsel for the petitioner, that 100 days were consumed by the defendant- petitioner in filing the written statement as against 90 days which is prescribed under the statute. It is, thus, contended that there is a delay of only ten day in submitting the written statement. Learned counsel for the respondent, on the other hand, submitted that it is a misconception to say that there was a delay of only ten days whereas the fact remains that more than a period of one year was consumed by the defendant in filing the written statement if the period during which the ex-parte order remained in force is taken into account. Having heard the rival submission of the learned counsel for the parties, it is apparent that it is a misnomer on the part of the defendant-petitioner to contend that there is a delay of only ten days. However, so far as the order passed to proceed ex- parte is concerned, the learned trial court having found sufficient cause for the non-appearance of the defendant-petitioner has set aside the same and, therefore, it would not be appropriate for this court to go into the aforesaid question. Nonetheless, it was the duty of the defendant- petitioner whose defence has once been struck off and an order to proceed ex-parte had already been passed against him to be more vigilant and he ought to have filed the written statement within the time allowed. 3 However, in the facts and circumstances, I am inclined in the interest of justice to afford an opportunity to the petitioner to file the written statement to present his defence, since it has already been filed, to be taken on record, on the condition that the defendant shall pay a cost of Rs.2,000/- to the plaintiff-respondent. Consequently, this writ petition is allowed subject to the payment of cost of Rs.2,000/- by the petitioner- defendant to the plaintiff-respondent on the next date fixed before the learned trial court. The interim order stands vacated. (DALIP SINGH),J. Solanki DS, Jr.P.A.