// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6798/2006 Kishorilal S/o Shri Bhuraram Jat Versus Deep Chand S/o Tara Chand and Others Date of Order ::: 20.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Rinesh Gupta and Shri Harsh Saini, Counsel for petitioner Shri Mahesh Gupta, Counsel for contesting respondents No.1 and 2 Shri Ved Prakash, Counsel for respondent No.4 #### By the Court:- Admit. Shri Mahesh Gupta, Advocate, appears for contesting plaintiff-respondents No.1 and 2. Shri Ved Prakash, Advocate, appears for the respondent No.4, Proforma-respondent. The respondents No.2 and 3 are only Proforma respondents and the respondent No.5 is only a formal respondent, therefore, their service is dispensed with. Heard learned counsel for the parties. The plaintiff-respondents filed a suit for cancellation of mortgage-deed, possession and permanent injunction in the trial court wherein service of summon was affected upon the defendant No.1-petitioner on 7th May, 2004 but // 2 // he could not file his written-statement within a period of 90 days as prescribed in the CPC as he was in jail on the date of service of summon and subsequently the written-statement was filed along-with an application under Section 151 CPC on 5th April, 2005. The trial court, vide its order dated 22th July, 2006, rejected the application and did not take on record the written-statement filed by the defendant No.1, and that order is impugned in this writ petition preferred on behalf of the defendant No.1. The learned counsel for the petitioner contended that on the date of service of summon, the petitioner was in jail and subsequently he remained busy therefore he could file the written-statement well in time and ultimately the same was filed on 5th April, 2005, but the trial court committed an illegality in not taking the same on the record in view of the fact that the Hon'ble Supreme Court already held that the provisions of the Order 8 Rule 1 CPC are not mandatory but are only directory in nature. He further submits that so far as delay of proceedings is concerned, the same can be compensated by awarding costs to the plaintiff. The learned counsel for the contesting // 3 // respondents contended that under Order 8 Rule 1 CPC there is a limitation of 30 days to file the written-statement and the said period can be extended up to 90 days but the defendant No.1 failed to file its written-statement within that period, therefore, the trial court was fully justified in passing the impugned order. So far as the learned counsel for the respondent No.4 is concerned, Shri Ved Prakash, Advocate, contended that he has no objection in case the written statement filed by the the defendant no.1 is taken on the record. I have considered the submissions of the learned counsel for the parties and examined the impugned order passed by the trial court. There is no dispute in between the parties that the written-statement on behalf of the defendant No.1 has already been placed on the record on 5th April, 2008. The Hon'ble Supreme Court in R.N. Jadi & Brothers v. Subhashchandra (2007) 6 SCC 420 , has considered the provisions of Order 8 Rule 1 and proviso thereto and held that the said provisions are directory 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 // 4 // statement within the time provided for. After considering the submissions of learned counsel for the parties, I am of the view that right of filing written-statement is a valuable right of defendant which normally should not be denied, therefore, the trial court committed an illegality in passing the impugned order, which is liable to be set- aside. Consequently, the writ petition is allowed. The impugned order dated 22nd July, 2006 passed by the trial court is set-aside. The written-statement filed by the defendant No.1-petitioner is directed to be taken on the record on payment of costs of Rs.3,000/- (Rupees three thousand only), which will be paid by the defendant-petitioner to the plaintiff-respondent, within a period of one month from today, failing which the written- statement of the defendant No.1 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//