- (1.) The present writ petition has been preferred under Article 227 of the Constitution of India against an order passed by the learned Sub Judge-I, Deoghar in Mortgage Suit No. 322 of 2002 dated 23rd June, 2004 as well as against the order dated 4th March, 2009 whereby, the petitioners' (original defendant nos. 4 and 5) application for filing of the written statement was dismissed.
(2.) Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby, quash and set aside the orders passed by the learned Sub Judge-I, Deoghar dated 23rd June, 2004 as well as the order dated 4th March, 2009, on the following facts and reasons:- (i) It appears that the present petitioners, who are original defendant nos. 4 and 5, appeared before the trial court, upon serving summons, but, they are not served with the copy of the plaint, though the order passed by the trial court dated 2nd June, 2004, Annexure-1 to the memo of the petition, the original plaintiff was directed to supply the copy of the plaint to original defendant nos. 4 and 5. (ii)It appears that, thereafter, erroneous order dated 23rd June, 2004 convicting original defendant nos. 4 and 5 was passed and thereafter, on 21st July, 2004, stage of filing of the written statement was closed down, by the trial court. (iii) It appears that no much time has been wasted by original defendant nos. 4 and 5. There is no delay in techniques adopted by original defendant nos. 4 and 5. Looking to the order of the trial court dated 2nd June, 2004, some time was consumed in preparing the written statement and immediately, the written statement was presented on 21st July, 2004. This aspect of the matter has not been properly appreciated by the trial court. (iv) Thereafter, an application was given for recalling of an order passed by the trial court dated 23rd July, 2004, but, that application has also been brushed aside vide order dated 4th March, 2009. Thus, there is no much delay in filing of the written statement from 2nd June, 2004 by original defendant nos. 4 and 5. (v) It has been held by the Hon'ble Supreme Court in the case of Kailash Vs. Nanhku and others as reported in (2005) 4 SCC 480 that the provision of the Code of Civil Procedure under Order VIII Rule 1, is not mandatory in nature.
(3.) In view of the aforesaid facts and reasons, I hereby, allow original defendant nos. 4 and 5 to file their written statement, with a cost of Rs. 500/- (Rs. Five hundred only). This cost will be deposited by the present petitioners (original defendant nos. 4 and 5) before the concerned trial court, within a period of two weeks, from the date of receipt of a copy of an order of this Court and on proper application, preferred by the original plaintiff, the said amount will be allowed to be withdrawn, by the original plaintiff.;