// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6009/2004 Ram Chandra S/o Kana Ram and Another Versus Civil Judge (JD), Srimadhopur and Others Date of Order ::: 21.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ajay Gupta, Counsel for petitioners Shri S.R. Saini, Counsel for respondent No.2 #### By the Court:- Admit. Shri S.R. Saini, Advocate, appears for the contesting plaintiff-respondent No.2. The respondent No.1 is only a formal party and the respondents No.3 to 5 are only Proforma respondents, therefore, their service is dispensed with. Heard learned counsel for the parties. The plaintiff-respondent No.2 filed a suit for permanent and mandatory injunction in the trial court, wherein the defendants appeared but they did not file written- statement in time, therefore, the trial court framed issues in the case and proceeded with the matter. Later on the defendant-petitioner filed an application on 19th September, 2003 // 2 // along-with written-statement to take the same on the record. The trial court rejected the said application vide order dated 20th July, 2004, which is impugned in this writ petition preferred on behalf of the defendant- petitioners. The learned counsel for the defendant- petitioners contended that the petitioners are residing in Punjab, therefore, they could not come in time and contact their counsel in order to file written statement. He further contended that a formal order closing the right to file written-statement has not been passed by the trial court. Now, the written-statement has already been filed, therefore, the same may be taken on the record; so far as delay of proceedings is concerned, the same can be compensated by awarding costs to the plaintiff- respondent. The learned counsel for the plaintiff- respondent defended the impugned order and prayed for dismissal of the writ petition. I have considered the submissions of the learned counsel for the parties and examined the impugned order. It is correct that a formal order closing the written-statement has not been passed in the case but further proceedings have // 3 // taken place in the matter, which clearly shows that the right to file written-statement is impliedly closed. The defendant-petitioner has now filed an application along-with the written-statement as per the amended provisions of the Order 8 Rule 1 CPC. The written- statement is required to be filed within a period of 30 days, which can be extended up-to 90 days by the court on reasonable grounds. However, the said provisions have been considered and interpreted by the Hon'ble Apex Court in R.N. Jadi & Brothers Vs. Subhashchandra – (2007) 6 SCC 420 , and, after considering the Order 8 Rule 1 and the proviso thereto, held that this provision is not mandatory and further that they do not take away the power 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. After considering the submissions of the learned counsel for both the parties, I am of the view that right to file written statement is an important and valuable right of the defendant and normally it should not be denied. So far as delay of proceedings is concerned, the same can be compensated by way of costs to // 4 // the plaintiff. Consequently, the writ petition is allowed. The impugned order dated 20th July, 2004 passed by the trial court is set-aside. The written-statement filed by the defendant- petitioner is directed to be taken on the record on payment of costs of Rs.3,000/- (Rupees three thousand only), which will be paid within a period of one month failing which the written-statement will not be taken on the record. So far as this writ petition is concerned, the costs is made easy. In view of the above, there is no need to pass any order on the application under Article 226 (3) of the Constitution filed by the respondent and the same also stands disposed of. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Appl. No.5163/2004 In S.B. Civil Writ Petition No.6009/2004 Ram Chandra S/o Kana Ram and Another Versus Civil Judge (JD), Srimadhopur and Others Date of Order ::: 21.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ajay Gupta, Counsel for petitioners Shri S.R. Saini, Counsel for respondent No.2 #### By the Court:- In view of the order passed in the writ petition, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//