IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.697 of 2007 YUGESHWAR THAKUR & ORS Versus GHURAN THAKUR & ORS ----------- 2 15.7.2008 Heard Counsel for the petitioner. The petitioner seems to be aggrieved by an order dated 13.1.2007 whereby and whereunder the Court below has rejected the application filed by the petitioner for acceptance of their written statement on the ground that it was filed beyond the period of ninety days of their service of summons and in fact after the Court had already debarred them from filing written statement by an order dated 7.11.2006. Counsel for the petitioner with reference to the pleadings in civil revision application as also stated in the impugned order submits that in a partition suit where the entire right of the petitioners were to be adjudicated, their being debarred from filing of the written statement, would virtually rob them off of their valid right to contest the case on merit. In this regard, he also submits that as a matter of fact summons were not served validly on the petitioners and therefore when this question was raised before the Court below it ought to have recorded the findings in this regard. He further submits that the spirit of the judgment of the Apex Court in the case of Kailash Vs. Nanhaku reported in AIR 2005 SC 2441 while laying down the law with regard to 2 the provision of order 8 rule 1 is that the same is directory and therefore the reasons for such delay have to be looked into even while considering the question of debarring the defendants from filing of the written statement. On the other hand, Counsel appearing on behalf of the opposite parties has stated that true it is that the provision of Order VIII Rule 1 has been held to be directory but then that does not mean that in each and every case the defendants can be given a liberty of delaying the disposal of the suit by choosing not to file their written statement for an unexplained period. He further submits that the Court below has committed no error in passing the impugned order by applying the ratio of the judgment of the Apex Court in the case of Salem Bar Association reported in AIR 2005 SC 3353 while passing the impugned order. In the opinion of this Court, the impugned order is not sustainable as the facts of this case for causing delay in filing written statement by the petitioners have not been carefully considered and analyzed by the Court which appear to have been missed altogether in its over enthusiasm to rely on the judgment of Apex Court in Salem Bar Association (supra). In fact the Court below was under obligation to first look into the reasons for not filing of the written statement as disclosed by the petitioners in their application. Such reason for not filing of such written statement by the petitioners 3 being that notices/summons were not allegedly served on them ought to have been at least considered with greater detail by the Court below. This having been not done, this Court taking into consideration the ends of justice as also the right of the parties in the partition suit, would set aside the impugned order and direct the Court below to accept the written statement already filed by the petitioners subject to the payment of cost of Rs. 7,500/- to the plaintiff opposite parties no.1 within a period of three months of the date of receipt/production of a copy of this order. With the aforementioned observations/directions, this civil revision application is allowed. Rsh (Mihir Kumar Jha, J.)