// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.8704/2005 With S.B. Civil Misc. Stay Appl. No.7467/2005 Hanuman S/o Laxmi Narain and Others Versus Civil Judge (Jr.Div.) & Judicial Magistrate, Todaraisingh and Another Date of Order ::: 27.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Dharmendra Jain, Advocate, for Shri Nemi Chand Choudhary, Counsel for petitioners Shri Vivek Goyal, Counsel for respondent No.2 #### By the Court:- Admit. Shri Vivek Goyal, Advocate, appears for the respondent No.2. The respondent No.1 is only a formal party, therefore, its service is dispensed with. Heard learned counsel for the parties. The plaintiff-respondent No.2 filed a suit for declaration and permanent injunction wherein the defendant-petitioners did not appear in spite of service of notice, therefore, the trial court passed ex-parte order on 23rd March, 2004. However, the same was set-aside on an application filed by the defendants on 7th October, 2004. The defendants // 2 // filed their written-statement along-with an application to take the same on the record on 20th January, 2005. The application was opposed by the plaintiffs. The trial court rejected the said application vide order dated 3rd October, 2005 (Annexure-3), which is under challenge in this writ petition, preferred on behalf of the defendants. The learned counsel for the petitioners contended that initially ex-parte order was passed against them which was set-aside on 7th October, 2004 and thereafter they filed their written-statement on 20th January, 2005, therefore, there was no much delay in filing the reply. The delay was not deliberate, therefore, the written-statement should have been taken on the record. The learned counsel for the respondents contended that the summon of the suit was served upon the defendants in March, 2004 and the period of 30 days of filing the written- statement should have been counted from March, 2004 itself. He further submits that even from the date of setting-aside the ex-parte order the written-statement was not filed within a period of 30 days, therefore, the trial court was fully justified in rejecting their application. // 3 // I have considered the submissions fo the learned counsel for the parties. The summon of suit was served upon the defendants in March, 2004 but they failed to appear before the trial court, therefore, ex- parte order was passed. They moved an application for setting-aside the ex-parte order on 8th April, 2004 which was allowed on 7th October, 2004. The written-statement is required to be filed within a period of 30 days. Said time can be extended by the trial court up to 90 days. It is correct that written-statement was not filed within a period of 30 days or within 90 days but it was filed thereafter i.e. on 20th January, 2005. The defendants have not given any reasonable explanation for not filing the written- statement in time and in normal course the written-statement filed by the them beyond 90 days are not taken on the record, therefore, I do not find any illegality in the order passed by the trial court. However, I find that the right of the defendants to file written- statement is a valuable right which should not be denied normally. So far as delay of proceedings is concerned, the same can be compensated by way of costs to opposite party. The Hon'ble Supreme Court in R.N. Jadi & // 4 // Brothers Vs. Subhashchandra – (2007) 6 SCC 420, has considered the provisions of Order 8 Rule 1 CPC and the proviso thereto and held that these provisions are directory in nature and 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. In view of the above, I think it fit and proper to direct the trial court to take the written-statement filed by the petitioners on the record on payment of costs. Consequently, the writ petition is allowed. The trial court is directed to take on the record the written-statement filed by the defendant-petitioners on payment of costs of Rs.3,000/- which will be paid within a period of one month to the plaintiff 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 this order, the stay application, filed with the writ petition, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//