( 1 ) BY this order, I would be deciding the question whether the written statement filed by the defendants on 4th April, 2003, be permitted to be taken on record by condoning the delay in filing or not?

( 2 ) LEARNED counsel for plaintiff submits that the written statement has not been filed within the prescribed period. Not only that, it has been filed much beyond 90 days period, upto which the Court could extend the time exercising powers under Order V Rule 1 and Section 148 of the CPC. Written statement is stated to have been filed by the defendants on 4th April, 2003, while defendants are stated to have given eight weeks time for filing the written statement on 25th May, 1999. Undoubtedly, written statement has been filed after a period of nearly four and half years. The explanation offered by Mr. Vipin Sanghi, learned counsel for the defendant is that this being a suit for partition amongst family members, bona fide attempts were being made to reach at a settlement. It is on account of prolonged negotiations and talks, that resulted in the delay in filing of the written statement.

( 3 ) MR. SANGHI submits that the written statement had been ready as far back as November, 2002, but was not filed pending expectation of a settlement. Filing of the written statement would have thwarted the negotiations. He also submits that provisions of Order V Rule I CPC are not applicable to this case.

( 4 ) LEARNED counsel for the plaintiff submits that originally the suit for partition had been instituted in the District Court. The plaint was returned to be presented before the appropriate Court on objections as to jurisdiction etc. Hence the present suit was filed. It is stated that the defendant had filed the written statement in the suit before the District court. This factor to my mind does not negate the case for condonation of delay, rather it strengthens it. In as much as it shows that the defendant had already crystalized its defence and there should have been no difficulty in filing the written statement in the present case, but for efforts being made to amicably settle the matter. Learned counsel for the plaintiff submitted that the discretion of the Court should not be exercised in such a manner that a defendant who delays and prolongs the litigation gets the benefit out of it. He submitted that in case like the present one, entailing a gross delay in filing the written statement, the Court should reject the prayer for condonation of delay and not permit the written statement to be taken on record, which is a right accrued in favour of the plaintiff in terms of Order V Rule 1 CPC.

( 5 ) HAVING heard, counsel for the parties and taking into consideration the respective pleas urged before me, I am of the view that this is a case where the delay in filing of the written statement deserves to be condoned. Firstly it is a suit for partition concerning a family members where every endeavour should be made for amicable settlement. Even otherwise, the mandate under Section 89 effort ought to be made to settle the matter. Secondly, the defendant had already filed the written statement in the suit in District Court. Hence it could not be the situation that the defendant was delaying the case, but on account of the attempts at settlement written statement was not filed. Next the learned counsel expressed reservation that the defendant would attempt to improve its case. In case any pleas are sought to be taken, which are inconsistent with the earlier written statement or any admission is sought to be withdrawn, it is always to the plaintiff to assail the same. Mr. Sanghi states that certain subsequent events are only sought to be brought on record. I need not go into this question at this stage.

( 6 ) REFERENCE may be made to the observations of the Supreme Court in Topline Shoes Ltd. Vs. Corporation Bank , AIR 2002 SC 2487 wherein while dealing with the time limit prescribed for filing reply under Section 13 (2) (a) of Con