1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION No.6147/2004 S.B.CIVIL MISC.STAY APPLICATION No.5281/2004 Smt. Shyamwati v/s The Civil Judge (Junior Division) & Judicial Magistrate, Behror & Ors. DATE OF ORDER ::: AUGUST 28th, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri V.S. Yadav, for defendant/petitioner. None present for the plaintiffs/respondents. BY THE COURT : Heard learned counsel for the defendant/petitioner. No one is present on behalf of the plaintiffs/respondents despite service of notice upon them. 2. The defendant/petitioner has preferred this writ petition challenging the impugned order dated 6.7.2004 (Annexure 2) passed by the learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, Behror, whereby written statement filed by the defendant/petitioner has not been taken on record on the ground that it has been filed after expiry of the period of 90 days. 2 3. The learned counsel for the defendant/petitioner submits that the petitioner was impleaded as party by the defendants in the suit but she was not impleaded as non-applicant in the application for temporary injunction, therefore, she moved an application under O.1 R.10, C.P.C. to implead her party in the application for temporary injunction also. The said application was allowed on 9.2.2004 and immediately thereafter, the written statement was filed on 27.3.2004. The petitioner, therefore, contended that the trial court committed an illegality in not taking the written statement on record. 4. No one is present on behalf of the plaintiffs /respondents or any respondents despite service of notice. 5. I have considered the submissions made by the learned counsel for the defendant/petitioner in the light of the reasons assigned by the trial court in the impugned order dated 6.7.2004, the trial court has observed that the defendant No.1 and 3 had put their appearance in the court on 5.9.2003, the written statement was filed on 16.2.2004. The 3 defendant/petitioner No.1 put her appearance in the trial court on 12.11.2003 and filed written statement on 27.3.2004, therefore, the written statement filed by the defendants was not filed within a period of 30 days or within a period of remaining 60 days, therefore, the written statement cannot be taken on record. 6. From the submissions made on behalf of the defendant No.1 / petitioner, she was allowed to be impleaded as party in the application for temporary injunction on 9.2.2004 and she filed her written statement on 27.3.2004. Although the petitioner was impleaded as party in the suit and it was her duty to file written statement within a period of 90 days but the Hon'ble Apex Court in the case of R.N. Jadi & Brothers v/s Subhash Chandra, 2007 (6) SCC 420 has considered the provisions of O.8 R.1 CPC and proviso thereto and held that these provisions of CPC are directory and they do not take away the power of the court to take written statement on record though filed beyond 10 days. They only cast an obligation on defendants to file written statement within time provided for. 4 7. In view of the above referred decision of the Hon'ble Apex Court, I am of the view that the learned trial court committed an illegality in passing the impugned order and the same is liable to be set aside. 8. Consequently, the writ petition is allowed. The impugned order passed by the learned trial court dated 6.7.2004 is set aside and it is directed that the written statement filed by the petitioner, will be taken on record. Since the respondents have not appeared, therefore, the costs is made easy. 9. Since the main writ petition has been disposed of today, the stay application does not survive and the same is also disposed of. (Narendra Kumar Jain), J. chauhan/