f^. y; HI^nCOURT QE_CHHATTISGARH AT BILASPUR W.P. (227)No. 5143 of2008 r'etitloners 1. Kainalnaravan Sinlia S/o Adliram, aee aDOiiT 3-i vears, liuiexeeper, r'uoiic V" 02'iCS U6p£l'i-in£lit; UOH2firg£lOH; Tahsil Donsargaoii. District Rajrt.siiidgo.oii (CO). 2. Sabbir Khan, S/o Raliim Khan, aged aboirt 55 vsars. Mate. Public Worfc Departm.SD't, Doagargaon, Tahsil DoEgargaon, District Rajnandgaon /r^ry '\'~-v}- Versus Uetenaants K.espoBdent.s 1. Manthirram Sahu, S/o SSiri Sawaliram ;u, agsd about not l<nown years, Writ R/o of Village Gundardehi, Post Givaro, Police Station Dongargaroii, District Rainandsaon (CG). (Plaintiif) 2. Executive Engmeer. Public Works Departraeiit, District Rajnandgaon (CG). (Defendant) 3. State of CWiattissarh, toough Collector, Rajnandgaon, District Rajnandgaon (CG). (Defendant) Petition under Article 227 OTthe Constitution ofliidia i'Siugle Bencli: Hon'Me Mr. N.K^Agarw'aI, J.) Prei i-'^e^i Shri Anoop Majumdar, Advocaxe for the petitioners. Sliri Abhishek Siiilia, Advocate forthe respondent No. 1. Slii'i AS. Kaehhawaha, Deputv Advocate General fer'ihe Statc TsVR (Passed on 4"' day ofAugust, 2009) 1. Tas instant petition is directed asainst.the order dated 8-4-2008 passed by ths Additional Distt. Judge, (FTC). Rajnandgaon m Civil Suit No. BlitilBi ^T-"^ .L..L ^-^ 38B/2007 whereby and whereunder, the application under Section 151, C.P.C. preferred by the petitioners for takiag written statement on record has been dismissed. Brieffacts giving rise to this petition are that in the civil suit filed by fhe respondenf No. 1, the petitioners appeared on 11-7-2006 and the case was fixed for filing ofthe written statemeat on 30-10-2006. On 30-10-2006, the petitioners filed an application under Order 7 Rule 11, C.P.C. on the ground fhat the suit filed by the respondent No. 1 is liable to be dismissed for want ofnotice under Section 80 ofC.P.C. The petition imder Order 7 Ruie II ofC.P.C. filed by the petitioner remained pending for a long time i.effor about 10 months as fhe court was without presiding officer; Ultimately, the said application was dismissed by the court below vide order dated 22-11-2007 aiid thereafter the case was adjoumed for 10-12-2007. On that date, the petitioners herein filed their written statement along with an application under Section 151 ofC.P.C. for taking written statement on record. Shri Anoop Majumdar, leamed counsel appearmg for the petitioners, would submit that earlier his application under Qrder 7 Rule 11, C.P.C. was pending so writtenstatement could not be filed and on the very next day after its rejection, the petitionere have filed their written statement with application seeking permission. He placed reliance upon the judgment of this Court in case of Smt. Jamuna Devi and others -v- Suresh Kumar Agrawal passed m W.P. No. 2965 of 2006 whereby leanied Single Bench of this Court after considerine various judements ofSupreme Court in this regard ahnost in similar circumstances held in para 16 as under:- l^l^ "16. Inthe instant case the suit was filed on 19.04.2002. The respondent/defendant appeared in the court on 24.04.2002. Thereafter, despite several opportunities granted on 26.10.04, 27.1.04, 23.02.05 the respondent could file the written statement on 09.03.2005. On 25.11.2002 the petitioners filed an application under Order I Rule 10 of CPC for non-joiiider of State of CUhattisgarh as a party respondent. Thereafter, on 31.08.2003 the original plaintiff 3ied for which an application (IA No. 5) under Order XXII Rule 3 ofthe CPC for bringmg tiie legal heirs ofthe caaginal plamtiff on record was field and IA No. 5 was allowed on 30.10.2003. Thereafter, a review i.e. IA No. 7 was filed by the petitioners, which was rejected on 15.05.2004. Thereagainst the petitioners preferred ajn appeal being MCANo. 12/04(ml4.06.2004. Application filed undei- Order XXXDC Rule 1 & 2 ofthe CPC was decided on 26.10.2004. Thereagainst MCA No. 19/04 was prefen-ed before the appellate court. The same was disposed of on 17.02.2005. On receipt ofthe records from the appellate court written statement was filed by the defendant on 09.03.2005. The petitioners/plaintifFs filed an applicationon 07.11.2005 under Qrder VIII Rule 1 of CPC for rejecting the written statement on the ground that the same was filed beyond a period of90 days, which was dismissed by the court below on the gi-oimd that sufEcient reasons have been shown to entertain the written statement even after a period of90 days. It appears that the suit cannot be proceeded further on account of pendency of MCA against the various orders. Even otherwise some applications like application under Order I Rule 10 of CPC has to be considered at the earliest, the same was not done. Thereafter, fhe respondent/defendant immediately filed written statenient. The civil coiul has rightly accepted the written statement filed by the respondenVdefendant. Thus, there is no illegality or infirmity in the impugned order." 4. Per contra, Shri Abhisek Shamia, leamed counsel for the respondent No. 1 would submit that the petitioners have not filed written statement deliberately intime and inthe facts and circumstances ofthe case, the petitioners are not entitled for discretionaryrelief. He farther placed reliance in the decision of Supreme Court in 2009 f3) SCG 513 wherein the Supreme Court as observed that although the provision under Order 8 Rule 1 are directory in nature, however, the defendants may be pemiitted to file written statement after expiry of90 days only in exceptional circumstances. i >>il ,-ttll<i*»•"••«• -:^&y^. ^..'<4. '""!;. ^ . • * "^: 1)>,J— '% 1 li'.r M..J^€ 'wassS'- 7. 4 By applying the ratio offhe judgment in the above referred cases and also the law laid down in the case of Kailash -v- Nanku reported in 2005 (4) SCC 480, R.N. Jadl and others -v- Subhash Chandra reported in 2007 (6) SCC 420 in the present case, I am ofthe opinion that leamed Court below ought to have taken on record the written statement filed by the petitioners by awarding reasonable cost to the respondent no. 1 / plaintiff, as to file written statement is a valuable right and due to pendency of petitioners' application under Order 7 Rule 11, C.P.C. the written statement was not filed and immediately on its dismissal they filed their written statement. Therefore, the order impugied is set aside aad the Court below is directed to take written statement filed by fhe petitioners on record subject to payment of Rs. 5,000/- as cost to the plaintifF within one month from today. The matter is pending since 2007, so fhe trial Court shall proceed in the matter expeditiously. The petition is allowed. Sd/- N.K.Agarwal Judge ^. w ialiit