// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.3921/2006 Rajasthan Financial Corporation through Assistant Manager (Loan), Udyog Bhawan, Tilak Marg, Jaipur and Another Versus Shri Shiv Lal S/o Bhelu Ram and Another Date of Order ::: 30.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri J.K. Singhi, Counsel for petitioners None present for respondents #### By the Court:- Admit. No one is present on behalf of the plaintiff-respondent No.1 in spite of service of notice. Heard learned counsel for the petitioners. The plaintiff-respondent filed a suit for injunction in the trial court wherein summon of suit was served upon the defendant- petitioners on 29th September, 2003 and, on that date, Shri Hukamchand Sharma, Advocate, appeared on their behalf, who gave an undertaking to file his 'vakalatnama' and the written-statement. The case was fixed for 6th October, 2003 but written-statement was not // 2 // filed. Thereafter the case was adjourned from time to time and ultimately the written- statement was filed on 9th January, 2004 along- with an application for taking the same on the record. The application was opposed by the plaintiff by stating that 30 days time was granted to the defendants to file written- statement but the same was not filed within that period. It was further contended that even the court cannot grant time beyond ninety days under Section 148 CPC whereas the written- statement has been filed after expiry of the period of 90 days, therefore, the written- statement cannot be taken on the record. The learned trial court, vide its order dated 29th March, 2006 refused to take the written-statement on the record and fixed the case for plaintiff's evidence. The said order is under challenge in this writ petition preferred on behalf of the defendants. The learned counsel for the petitioners contended that the defendant is statutory body and some time was consumed in preparing and settling the written-statement, therefore, the written-statement filed on their behalf should have been taken on the record, as the right to file written-statement is an important right of // 3 // the defendants. The trial court committed an illegality in not taking the written-statement on the record, therefore, the impugned order may be set-aside. He further contended that so far as the delay of proceedings is concerned, the same could have been compensated by awarding costs. I have considered the submissions of learned counsel for the petitioners and examined the impugned order passed by the trial court. The Hon'ble supreme Court in R.N. Jadi & Brothers Vs. Subhashchandra – (2007) 6 SCC 420 has held that the proviso to Rule 1 of Order 8 CPC is not mandatory and it is directory. The said provision do not take away the powers of the court to take the written-statement on the record, though filed beyond ninety days; it only casts an obligation on defendant to file written-statement within the prescribed time. In view of the above, I find force in the contention of the learned counsel for the petitioners and am satisfied that the learned trial court has committed an illegality in not taking the written-statement of the defendants on the record, which was filed beyond 90 days. Consequently, the writ petition is allowed. The impugned order dated 29th March, // 4 // 2006 passed by the trial court is set-aside. The written-statement filed by the defendant- petitioners in the trial court on 9th January, 2004 is ordered to be taken on the record on payment of costs of Rs.3000/- (Rupees three thousand), which will be paid within a period of one month from today failing which the written-statement, as directed above, will not be taken on the record and the order passed by the trial court will stand as it is. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman//