// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.3469/2005 Manoharlal S/o Radhey Shyam Versus Sub Divisional Officer, Laxmangarh, Distt. Sikar and Others Date of Order ::: 29.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Anoop Dhand, Counsel for petitioner Ms. Manju Dave, Addl. Govt. Counsel for the State Shri Rajesh Sharma, Advocate, for Shri Asgar Khan, Counsel for other respondents #### By the Court:- Heard learned counsel for the parties. Plaintiff-respondent filed a suit for partition in respect of disputed property in the trial court wherein the defendant-petitioner appeared at his own and filed an application under Order 9 Rule 7 for setting-aside the ex- parte order passed against him contending therein that summon of the suit was never served upon him. The trial court, vide its order dated 27th February, 2003 allowed the application and set-aside the ex-parte order, and granted time as last opportunity to file written-statement before the next date i.e. 13th March, 2003. The defendant-petitioner, thereafter filed his written statement along-with an application, on 22nd July, 2004, to take the same on the // 2 // record. The trial court rejected the said application of the defendant-petitioner vide order dated 7th April, 2005, which has been challenged by the defendant-petitioner in this writ petition. The learned counsel for the petitioner contended that while allowing the application of the petitioner for setting-aside the ex-parte order on 22nd February, 2003, the trial court granted last opportunity to the petitioner to file the written-statement but written-statement of the defendant- petitioner was never closed. The matter should have been fixed for filing the written-statement but due to inadvertence the suit was fixed for framing of issues. He made a prayer to take written-statement on the record in the interest of justice but the trial court committed an illegality in not taking the same on the record, therefore, the order passed by the trial court be set-aside, and the written-statement, filed by the defendant No.7-petitioner be taken on the record. So far as the delay of proceedings is concerned, the learned counsel for the defendant-petitioner contended that the same could have been compensated by awarding costs in favour of the plaintiff. The learned counsel for the plaintiff-respondent contested the writ petition and contended that from the order dated 27th February, 2003, it is clear that the application of the petitioner under Order 9 Rule 7 CPC was allowed at the // 3 // costs of Rs.200/-, and last opportunity was granted to him for filing the written-statement. It was also mentioned that in case the written-statement is not filed then the same will be closed on the next date. He further contended that the issues were framed in the case and he did not raise any objection about non-filing of the written-statement, therefore, the trial court has rightly rejected the application and there is no merit in this writ petition and the same may be dismissed. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by the trial court for rejecting the application filed by the petitioner and also the order-sheets of the trial court and other documents annexed with the writ petition. It is true that vide order dated 27th February, 2003 the trial court allowed the application of the defendant- petitioner for setting-aside the ex-parte order and on the same day granted an opportunity for filing the written- statement. The trial court observed that it will be the last opportunity and in case the written-statement is not filed by the next date then the same will be closed. The learned counsel for both the parties do not dispute that the written-statement of the petitioner was never closed but the issues were framed in the case without any objection on behalf of the defendant-petitioner. No doubt, further proceedings in the present matter have been // 4 // delayed on the part of the defendant-petitioner but it is equally true that right of filing a written-statement is also a valuable right of the defendant. The present suit is a suit for partition of the property wherein written-statement of defendant is necessary, therefore, in the interest of justice, I think it fit and proper to allow the defendant-petitioner to file his written-statement on the record, on payment of costs. Consequently, the writ petition is allowed. The impugned order dated 7th April, 2005 passed by the trial court is set-aside. The written-statement on behalf of the defendant No.7-petitioner is ordered to be taken on the record on payment of costs of Rs.3,000/-, which will be paid by the defendant-petitioner to the plaintiff-respondent or his counsel on or before 10th July, 2008. It is made clear that in case the payment of costs, as awarded, is not made by the petitioner on or before the aforesaid date, then the writ petition will be deemed to have been dismissed and the written-statement of the defendant-petitioner will not be taken on the record. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay application No.3087/2005 In S.B. Civil Writ Petition No.3469/2005 Manoharlal S/o Radhey Shyam Versus Sub Divisional Officer, Laxmangarh, Distt. Sikar and Others Date of Order ::: 29.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Anoop Dhand, Counsel for petitioner Ms. Manju Dave, Addl. Govt. Counsel for the State Shri Rajesh Sharma, Advocate, for Shri Asgar Khan, Counsel for other respondents #### By the Court:- In view of the order passed in the writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//