MAHESH BHAGWATI, J. - (1.) BY way of the instant writ petition, the petitioners have beseeched to quash and set-aside the order dated 23.2.2006, whereby the learned Civil Judge (Jr. Division), Bayana, District Bharatpur gainsaid to take the written statement of defence on record filed by the petitioners-defendants.
(2.) HAVING heard the learned counsel for the parties and carefully perused the relevant material on record, it is noticed that a suit for permanent injunction came to be filed by the respondents-plaintiff against the petitioners-defendants in the Court of Civil Judge (Jr. Division), Bayana. The petitioners-defendants are found not to have filed the written statement of defence within the stipulated period as envisaged under Order 8 Rule 1 CPC. The learned trial court is found to have gainsaid to take the written statement of defence on record for the simple reason that the petitioners-defendants did not file the written statement in 90 days nor they could explain the delay for not filing the written statement as such. Learned counsel for the petitioners canvassed that they could not file the written statement of defence in the absence of copy of plaint as they were not served with a copy of plaint along-with the summon and thus, they filed an application under Order 7 Rule 11 (e) CPC imploring the court to reject the plaint. Both the prayers put forth by the learned counsel for the defendants were dismissed and the right of the petitioners-defendants to file the written statement of defence was closed. In the case of Kailash Versus Nanhku and others reported in 2005 (4) SCC 480, the Hon'ble Apex Court observed as under: "the provisions spells out a disability on the defendant: a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Though the language of the proviso to Rule 1 Order 8 CPC is couched in the negative form, it does not specify any penal consequences flowing from the non-compliance; however, the consequences of non-compliance may be read in by necessary implication. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory. Moreover, under Order 8 Rule 9, in spite of the time limit appointed by Order 8 Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement." The Hon'ble Apex Court has further held that: "however, the fact that Order 8 Rule 1 CPC has been held to be directory may not be misunderstood as nullifying the entire force and impact " the entire life and vigour " of the provision". Adverting to the facts of the instant case, it is found that the learned trial court dismissed the application of the petitioners-defendants observing that no plausible reason was given for not filing the written statement of defence upto 270 days. Thus, the impugned order passed by the learned trial court is found to have suffered from no infirmity. However, keeping in view the fact that no progress has been there in the suit for the last 8 years on account of there being stay on further proceedings of the suit by this Court and the status of the suit has remained static, I, in the interest of justice, deem just to allow the petitioner to file written statement of defence within fifteen days as to exemplary cost of Rs. 5,000/-, to be paid by the petitioners-defendants to the plaintiff-respondents. Consequently, the writ petition is allowed and the order dated 23.2.2006 passed by the learned trial court is set-aside. The learned trial court is directed to take the written statement of defence, to be filed by the petitioners-defendants, on record, subject to payment of cost of Rs. 5,000/-, to be paid to the plaintiff-respondents. It is made clear that the written statement of defence of the petitioners-defendants shall be taken on record by the learned trial court only after the payment of cost of Rs. 5,000/- is made to the plaintiff-respondents.
(3.) THE learned trial court is also directed to expedite the trial of the suit and decide the same as early as possible preferably within a period of six to eight months as the suit has been pending for the last eights years.;