1 20 S.B. CIVIL WRIT PETITION NO.2721/2008. Logar Lal Vs. Roshan Lal & Anr. Date of Order :: 9th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vineet Sanadhaya for Mr. Rajesh Parihar, for the petitioner. Mr. Durga Ram Kawadia for the respondent No. 1 (Caveator) ..... BY THE COURT: This writ petition has been preferred by the defendant in a suit for perpetual injunction as filed by the plaintiff- respondent No.1 [C.O. No. 28/2007 pending in the court of Additional Civil Judge (Senior Division) No.2, Udaipur] against the order dated 31.03.2008 (Annex.6) whereby the learned Trial Court has refused to take the written statement on record. The learned Trial Court has proceeded to reject the application for condonation of delay in filing the written statement and has declined to take the written statement on record on the considerations, inter alia, that the defendant- petitioner put his appearance in the suit as back as on 17.05.2007 and did not file written statement in time; that the defendant stated different and contradictory reasons for delay inasmuch as by way of the application dated 06.09.2007 he sought time to submit written statement on the ground that certain documents were not available whereas in the 2 application dated 17.09.2007 gave out his ailment to be the cause for not filing the written statement in time; and then, there was no proof adduced towards the alleged ailment. It is submitted in this writ petition that the approach of the learned Trial Court has been unrealistic and not in conformity with the requirements of the rules of procedure that a party to the litigation deserves to be extended adequate opportunity of hearing and not to be punished for defaults. Learned counsel Mr. Durga Ram has put in appearance on behalf of the plaintiff-respondent No.1 in caveat and even while maintaining that the order passed by the learned Trial Court cannot be said to be unjustified or contrary to the facts of the case and the law applicable submitted, in all fairness, that the plaintiff-respondent intends to contest the matter on merits and instead of joining issue in this petition, shall have no objection if the written statement is taken record but for admitted extra delay caused by the defendant, the plaintiff deserves to be compensated by adequate costs. For the fair submissions made on behalf of the plaintiff-respondent, while dispensing with service on the proforma respondent No. 2, it appears appropriate to dispose of the matter finally at this stage itself. Indisputably, the defendant was served in the suit on 17.05.2007 and filed his written statement only on 17.09.2005. True it is that the defendant was granted opportunities after 3 opportunities for the purpose of filing his written statement but then, the observations as made by the learned Trial Court about the defendant having stated contradictory reasons in the respective applications dated 06.09.2007 and 17.09.2007 do not appear apt and justified because the reasons stated in the two applications filed at different point of time, even when distinct, cannot be said to be contradicting each other. On 06.09.2007 the defendant prayed for time for filing the written statement because the documents laying with his erstwhile lawyer were not available; whereas on 17.09.2007, the defendant did file his written statement and submitted that due to his illness the same could not be filed earlier. The applications cannot be said to be suggesting something improbable or contradicting each other, particularly looking to the time gap in between. It is to be imbibed that the rules of procedure are ultimately intended to sub-serve the cause of justice and, all in all, the written statement has in fact been filed in this case, albeit after 125 days from the date of service of summons. Looking to the nature of dispute between the parties the written statement could have been taken on record when on earlier occasions the Trial Court did adjourn the matter for filing written statement; and in relation to delay, the plaintiff could have been adequately compensated in costs rather than throwing the defendant out altogether. 4 Looking to the overall facts and circumstances, it appears appropriate that the written statement already filed be taken on record and delay be condoned. Learned counsel for the plaintiff-respondent No.1 has rightly chosen not to put the matter to contest in this writ petition but then, the prayer for allowing costs to the plaintiff appears to be justified. This Court is of opinion that interest of justice shall be served if the written statement is taken on record upon payment of costs of Rs.2,000/- (two thousand) by the defendant-petitioner to the plaintiff-respondent No.1 on or before the next date of hearing in the Trial Court, said to be 19th inst. Accordingly, this writ petition is allowed to the extent indicated above; the impugned order dated 31.03.2008 (Annex.6) is set aside and the written statement is ordered to be taken on record subject to the condition of the defendant- petitioner making payment of costs of Rs.2,000/- to the plaintiff-respondent No.1 on or before the next date fixed in the matter in the Trial Court. No further order as to costs of this writ petition. (DINESH MAHESHWARI), J. Mohan/