ORDER :

1. Petitioners are before this Court, under Article 227 of the Constitution of India challenging the common order dated 22.01.2020 rejecting two applications filed under Section 151 of CPC to accept the written statement of defendants No.4 to 7 and under Order XVIII Rule 17 of CPC to recall P.W.1 in O.S.No.8276/2012 on the file of the III Additional City Civil and Sessions Judge, Bengaluru.

2. The petitioners are defendants No.4 to 7, respondents No.1 to 4 are plaintiffs and respondent Nos.5 to 40 are codefendants in the above stated suit. The suit is one for partition and separate possession of the suit schedule properties. The suit is at the stage of final arguments. At that stage, the petitioners/defendants No.4 to 7 filed two applications, one under Order XVIII Rule 17 of CPC to recall P.W.1 for cross-examination and another application under Section 151 of CPC to condone the delay and to take on record the written statement.

3. The defendants in the affidavit accompanying application filed under Section 151 of CPC seeking condonation of delay and permission to file written statement stated that the defendants No.5 to 7 being sisters of defendant No.4 were residing in matrimonial home and could not instruct their counsel well in time to file written statement. Further, it is stated that the plaintiffs had previously filed O.S.No.6451/2008 and they required some time to get certified copies of the same. In the same lines, the affidavit in support of application under Order XVIII Rule 17 of CPC was filed. The above applications were opposed by the plaintiffs by filing objections. It was contended that only to drag on the proceedings, the present applications are filed. No reason whatsoever is stated to condone the delay in filing the written statement. The trial Court under the impugned order rejected both the applications stating that there is no cogent reason to condone the delay of more than four years. Aggrieved by the said order, the petitioners are before this Court in this writ petition.

4. Heard the learned counsel Sri.R.Subramanya along with Sri.Pradeep, Advocate for petitioners and Sri.Vijaykumar, Advocate for respondents No.1 to 4/plaintiffs. Perused the writ petition papers.

5. Learned counsel for the petitioners would submit that the impugned order is wholly erroneous and the trial Court committed an error in rejecting the applications filed seeking leave to file written statement and to recall P.W.1 for cross-examination. In a suit for partition, the defendants would also be plaintiffs and in that circumstances denial of an opportunity to file written statement is wholly erroneous. The petitioners/ defendants stated reasons for condoning the delay to the effect that they were staying in their matrimonial home and they had to collect papers of the previous suit, which the trial Court failed to consider it in proper perspective. The learned counsel for the petitioners relies on the decision reported in ILR 2016 KAR 4700 in the case of Justice Micheal F.Saldana (Retd.) V/S Sri.M.P.Naronha (Melwyn Prakash Noronha) and others to contend that the provisions of Order VIII Rule 1 of CPC are directory in nature and not mandatory. Thus prays for allowing the writ petition.

6. Per contra, learned counsel for the respondents No.1 to 4/plaintiffs justifies the order of the trial Court. The learned counsel would submit that there is inordinate delay of four years in seeking leave to file written statement. The suit is already at the stage of final arguments and at this stage, it is not open for the petitioners/defendants to seek permission to file written statement and to recall P.W.1 for cross-examination without there being any genuine reason. Learned counsel would further submit that even though suit summons was served much earlier on defendants No.4 to 7, they appeared before the Court only on 05.01.2016 by filing an application under Order IX Rule 7 of CPC which was allowed on payment of cost. Even though the def