Judgment:
Narendra Kumar Jain, J.
1. Heard learned Counsel for the parties.
2. The defendant-petitioners have preferred this writ petition challenging the impugned order dt. 02.08.2006 passed by the trial Court, whereby the applications under Order 8 Rule 10 and Order 8 Rule 1 CPC filed by the plaintiff for not taking the written-statement on record being filed after expiry of 90 days has been allowed and it has been directed that defendants' written-statement is not taken on record and the same can be kept in Part-D of the file.
3. The brief facts of the case are that plaintiff-respondent No. 2 Smt. Chawali Meena filed a suit for permanent injunction against the defendant-petitioners in the trial Court along-with an application for temporary injunction. The defendants filed their written-statement in the trial Court on 01.08.2003. The plaintiff filed an application that written-statement has been filed after the expiry of period of 90 days, as provided under Order 8 Rule 1 CPC, therefore, the same cannot be taken on record. The trial Court allowed the said application and passed an order that written-statement is not taken on record. Hence this writ petition has been preferred on behalf of the defendants.
4. The submission of learned Counsel for the petitioners is that earlier the trial Court passed the same order on 13.10.2004, which was challenged before this Court in S.B. Civil Writ Petition No. 8771/2004 and the same was allowed vide order dt. 30.01.2006 and case was remanded back to the trial Court to hear the arguments on the applications filed under Order 8 Rule 10 and Order 8 Rule 1 CPC and pass a fresh order in view of ratio decided by the Hon'ble Supreme Court in the case of Kailash v. Nanhku and Ors. reported in : AIR 2005 SC 2441, wherein it was held that, 'the time schedule provided by Order 8 Rule 1 is directory in filing the written statement and as such Order 8 Rule 1 spells out disability of defendant and which does not impose embargo on Court's power. He contended that despite the aforesaid direction by this Court, the trial Court again allowed the application of plaintiff and passed an order that written-statement is not taken on record. He contended that the right of defendants to file written-statement is a valuable right, which should not be denied normally. So far as delay in filing the written-statement is concerned, the same can be compensated by way of awarding the cost to the plaintiff. He, therefore, contended that impugned order be set-aside and written-statement filed in the case be taken on record.
5. The learned Counsel for the plaintiff-respondent opposed the writ petition and contended that the written-statement which has been filed after expiry of period of 90 days should not be taken on record as a matter of right and defendants have failed to explain the delay properly in the present case, therefore, the learned trial Court was right in passing the impugned order and in these circumstances, the present writ petition deserves to be dismissed.
6. I have considered the submissions of learned Counsel for both the parties and examined the impugned order dt. 02.08.2006 passed by the trial Court and also the order dt. 30.01.2006 passed by this Court in S.B. Civil Writ Petition No. 8771/2004. The order of this Court dt. 30.01.2006 is reproduced as under:
30.01.2006
Hon'ble Mr. K.S. Rathore, J.
Mr. R.K. Agarwal, for the petitioner Mr. Krishna Verma, for the respondents
This matter comes up on the application under Article 226(3) for vacation of ex parte interim order passed by this Court on 12.04.2005.
At the request of the learned Counsel for the parties, the matter is heard finally at this stage.
This writ petition is directed against the order dt. 13.10.2004 passed by the Additional Civil Judge (Sr. Div.) No. 5 Jaipur City, Jaipur, in Civil Suit No. 125/02. Vide impugned order dt. 13.10.2004, the application dt. 28.05.2003 under Order 8 Rule 10 CPC has been rejected as the written statements were filed beyond the period of 90 days.
Having heard learned Counsel for the parties and perused the order impugned, the written statement was filed after expiry of 90 days and as per the view taken by Hon'ble the Supreme Court in the case 'Kailash v. Nanhku and Ors.' reported in AIR 2005 SC 241 wherein it was held that 'the time schedule provided by Order 8 Rule 1 is directory in filing the written statement and as such Order 8 Rule 1 spells out disability of defendant and which does not impose embargo on Court's power. Extension of time however to be granted only for exceptional circumstances'.
Looking to the facts and circumstances of the case, in view of the ratio decided by Hon'ble the Supreme Court, I deem it proper to quash and set aside the order impugned dt. 13.10.2004 and remand the matter back to the trial Court to hear arguments on the applications filed under Order 8 Rule 10 and Order 8 Rule 1 CPC and shall pass fresh orders in view of the ratio decided by Hon'ble the Supreme Court.
Accordingly, the writ petition is allowed. Consequence thereof, the interim stay order passed by this Court on 12.04.2005 stands vacated. The application under Article 226(3) stands disposed of.
7. There is no dispute in between both the parties that written-statement has already been filed by the defendants in the trial Court on 01.08.2003. It is relevant to mention that while admitting the present writ petition, this Court vide order dt. 11.09.2006 stayed the further proceedings of the trial Court and the said stay order is still continuing and no progress in the suit has taken place. Although a period of limitation has been prescribed for filing the written-statement, but the said provision has been interpreted by the Hon'ble Apex Court. One of the judgment of Hon'ble Apex Court in Kailash v. Nanhku (supra) was referred in earlier order of this Court dt. 30.01.2006. Apart-from above, the Hon'ble Apex Court in another latest judgment in R.N. Jadi and Brothers v. Subhash Chandra (2007) 6 SCC 420, while interpreting the provisions of Order 8 Rule 1 and proviso thereto, has held that the said provisions are directory in nature. They do not take away the power of the Court to take the written-statement on record, though filed beyond 90 days. They only cast an obligation on defendant to file the written-statement within the time provided for. The right to file the written-statement is a valuable right, which should not be denied normally. Although it is the duty of the defendants to file the written-statement well-in-time, but in case there is any delay and Court comes to a conclusion that in the interest of justice, the same should be taken on record, then it should be taken on record.
8. Looking to the controversy involved in the present case, I find that filing of written-statement is necessary. So far as delay in filing the written-statement is concerned, the same can be compensated by awarding cost.
9. The learned Counsel for the defendant-petitioner has voluntarily offered a sum of Rs. 5000/- (Rs. Five Thousand only) as cost and he undertakes to pay the same within a period of 30 days from today.
10. Consequently, the writ petition is allowed. The impugned order dt. 02.08.2006 is set-aside. The application filed by the plaintiff is dismissed and the written-statement filed by the defendants is taken on record at the cost of Rs. 5000/-, which will be paid within a period of 30 days from today, failing which the written statement will not be taken on record. So far as cost of this writ petition is concerned, the same will be borne by the respective parties.
11. The learned Counsel for both the parties pray that since the suit is old one, therefore, the trial Court be directed to decide the suit expeditiously.
12. The request appears to be reasonable. Hence, the same is allowed. The trial Court is directed to decide the suit expeditiously.