The court has the discretion to accept a written statement filed subsequently after the settlement of the issues upon such terms as the court thinks fit.

Raj Kishore Prasad, J.

1. This application, in revision, by defendant 3, Binda Prasad, is directed against the order of the court below rejecting his written statement.

2. The sole question for determination is, whether the written statement, filed by the petitioner, long after the settlement of the issues, should be accepted?

3. The facts are these: On the 27th April, 1957, the plaintiff filed a mortgage suit, claiming a sum of Rs. 1,36,124.17 nP., on account of overdraft advances, against the petitioner, defendant 3; his father, defendant 1; and, his brother, defendant 2. On the 21st December, 1957, defendant 2, and, on the 27th February, 1958, defendant 1, filed their respective written statements. Next day, that is, on the 28th February, 1958, issues were settled. Defendant 3, however, did not, till that stage, appear, or, file any written statement.

4. More than two years later, five special witnesses, namely, P. W. 1, P. W. 2 and P. W. 3, on the 19th April, 1960; P. W. 4, on the 9th August, 1960; and, P. W. 5, on the 10th August, 1960, were examined by the plaintiff, and, cross-examined by defendants 1 and 2.

5. After the examination of the aforesaid last special witness, the court below fixed the 18th August, 1960, for hearing. On that date defendant 3 appeared and filed his written statement about two and a half years after the settlement of the issues in the suit. On the 19th August, 1960, the plaintiff filed an objection to this written statement. Defendant 3 also, on the 20th August, 1960, filed a petition showing cause for his previous non-appearance and for late filing of his written statement and praying for its acceptance.

6. The court below took up the matter on the 20th August, 1960, and, by its order of that date, as already indicated, rejected the said written statement of the petitioner.

7. On behalf of the petitioner, Mr. Lalnarain Sinha, the learned Government Advocate, argued that the reasons given by the court below for rejecting the written statement are not sound and, therefore, the petitioner may be put to terms and his written statement accepted.

8. On behalf of the plaintiff-opposite party No. 1, however, Mr. Jyotirmoy Ghosh, supported the order under revision, and contended that the petitioner should have filed his written statement, as required by Rule 1, Order 8, Civil Procedure Code (hereinafter referred to as "the Code"), at or before the first day of hearing, which means the date when the issues were settled that is, the 28th February, 1958, and, he not having done that, his written statement has rightly been rejected. He, further, argued that the petitioner by his new written statement, wanted to raise new defence, which was not raised before, either by his father, defendant 1, or, by his brother, defendant 2, and, therefore, if the written statement of the petitioner is accepted at this late stage, it will complicate the issues and unnecessarily delay and prolong the hearing of the suit in the court below.

9. Mr. Ghosh, in support of his contention, relied on Rule 1, Order 8, of the Code, which provides that-

"1, The defendant may, and, if so required by the court, shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence";

and, submitted that the expression "first hearing", occurring in Rule 1, means the date of settlement of issues in the suit, as held in Kodi Makku Naicker V/s. Agathiappa Goundar, AIR 1949 Mad 622, and, in Kalloo V/s. Mt. Imaman, AIR 1949 All 445, and, as such, the petitioner was bound to file his written statement at or before the date ot settlement of issues, but this was not done, and, therefore, the court below rightly rejected his written statement.

10. Mr. Ghosh also relied, in support of his above contention on Rule 1, Order 13, of the Code, and submitted that the expression "first hearing of the suit", used in Rule 1, Order 13, means the date of the settlement of the issues, as held by a