1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.2160/2008 Amarnath Versus The Civil Judge (Junior Division) & Judicial Magistrate & Another Date of Order :: 16th July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Ms. Gayatri Rathore for the petitioner Mr. Anoop Agarwal for the respondent no.2 BY THE COURT: Admit. 2. Heard learned counsel for the parties. 3. The plaintiff-respondent no.2-Om Prakash Gupta filed a suit for declaration and cancellation of Will and adoption deed and also for permanent injunction against defendant- petitioner in the trial court. The summon of suit was served upon the defendant but due to his non appearance, the ex-parte order was passed against him. However, on an application filed on behalf of the defendant, the ex-parte order was set-aside on 2nd May, 2007 and an opportunity was granted to defendant to file his written statement. The written statement was not filed, therefore, it was closed and 2 case was fixed for plaintiff's evidence. The plaintiff's witness was cross-examined and case was fixed for remaining evidence of the plaintiff and at that stage the defendant filed an application on 17th November, 2007 to grant one more opportunity to file the written statement. The trial court rejected the said application vide order dated 8th February, 2008 which is under challenge in this writ petition preferred on behalf of the defendant. 4. The learned counsel for the petitioner contended that the defendant resides at Calcutta in West Bengal and due to death of his daughter he was mentally and physically upset and could not contact his counsel nor he could give any information about it and in these circumstances the written statement was closed, therefore, the application was moved for grant of one more opportunity for filing the written statement which has wrongly been denied by the trial court, therefore, the order passed by the trial court be set-aside and one last opportunity may be granted for filing the written statement. So far as delay of proceeding of trial court is concerned, the learned counsel for the petitioner contended that a reasonable amount of cost be imposed on 3 him to compensate the plaintiff. 5. Learned counsel for the respondents contended that defendant was present in the trial court on 15th May, 2006 and case was fixed for filing the written statement on 4th July, 2006 and 14th August, 2006 but written statement was not filed. The time was again granted for filing the written statement at the cost of Rs. 500/-, but it was not filed on 24th August, 2006 also. Nobody appeared on behalf of the defendant and ex-pate order was passed. However, the ex-parte order was set-aside and defendant was again given an opportunity to file the written statement. In these circumstances, he contended that the defendant has not shown any sufficient cause for not filing the written statement in time and petitioner deserves no sympathy and writ petition deserves to be dismissed. 6. I have considered the submissions of learned counsel for the parties, impugned order dated 8th February, 2008 and other documents annexed with the writ petition. From the order passed by the trial court, it appears that sufficient opportunity was given to defendant- petitioner for filing the written statement. Even before passing of the ex-parte order, 4 three opportunities were granted to defendant and again while setting aside the ex-parte order, the time was granted to defendant to file the written statement but the same was not filed. In these circumstances, I find that the trial court was fully justified in closing the written statement of the defendant. However, in the interest of justice and looking to the dispute in between both the parties, I think it fit and proper to grant one more opportunity to defendant to file written statement on payment of cost. 7. Consequently, the writ petition is allowed. The defendant-petitioner is permitted to file his written statement on or before 14th August, 2008 on payment of cost of Rs. 5000/- (Rupees five thousand only). 8. It is made clear that in case the written statement, as directed, is not filed on or before the aforesaid date or payment of cost is not made, then it will be deemed that this writ petition has been dismissed and no further opportunity in this regard will be granted to the defendant-petitioner. 9. So far as this writ petition is concerned, the cost is made easy. (NARENDRA KUMAR JAIN),J.