( 1 ) HEARD Mr. R. K. Mishra, learned counsel appearing for the petitioners and Mr. K. M. Thakar, learned counsel appearing with Miss Anar Parikh, learned counsel on behalf of M/s. Trivedi and Gupta for the respondents.

( 2 ) INVOKING jurisdiction of this Court under Article 227 of the Constitution of India , the petitioners-orig. defendants of Special Civil Suit No. 97 of 1997 have prayed that this Court should exercise powers and should quash and set aside the order dated 16th April, 2005, passed below Exh. 103 by the ld. Civil Judge (S. D.) and permit the petitioners-orig. defendants to submit their written statement in the Suit pending with the Court. The application Exh. 103 was submitted by the petitioners-orig. defendants stating that due to the mistake committed, the petitioners could not submit their written statement and, therefore, they may be permitted to file their written statement. The mistake in the application has been explained by way of an affidavit dated 01st October, 2003 of one Shantilal Ganeshbhai Prajapati, wherein the deponent has stated that he, being a clerk of the advocate of the concerned matter, has erred in not submitting the written statement in the Suit i. e. Special Civil Suit No. 97 of 1997 and, therefore, it is the say of the present petitioner that the ld. Civil Judge accepting the explanation ought to have extend the time to file the written statement and ought to have permitted the petitioners as the amount involved is very high and the dispute centres around number of controversial issues and non-availability of written statement by the petitioners may cause serious prejudice to them. The Court has admitted this petition and after admission of the petition, the petitioners have prayed by way of abovementioned Civil Application that till hearing and disposal of the present petition, the proceedings of Special Civil Suit may be stayed. But as today, the Court has heard the submissions of the learned counsel appearing for the parties in detail, both these proceedings i. e. Special Civil Application as well as Civil Application are being disposed of by this common judgment and hence, this judgment.

( 3 ) FOR the sake of brevity and convenience, I would like to quote main reliefs as prayed for in petition in paragraph no. 8, which are as under : 8 (A) Your Lordships may be pleased to quash and set aside the order below Exh. 103 passed in the Special Civil Suit No. 97/1997 vide Annexure- D dated 16. 4. 2005 passed by the Second Joint Civil Judge (S. D.), and J. M. F. C. , Bharuch. 8 (B) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice.

( 4 ) AT one point of time, Mr. R. K. Mishra, learned counsel appearing for the petitioners, has submitted that while permitting the present petitioners this Court may award exemplary costs against the present petitioners and the same may be even more than Rs. 50,000/ -. But a mistake committed by an advocate or his clerk should not result into utter miscarriage of justice. Mr. R. K. Mishra has taken me through the order under challenge and the nature of dispute between the parties; especially the decision in the case of Kailash v. Nanhku and others, reported in 2005 AIR SCW 2346. Mr. Mishra has taken me through the relevant paragraphs of the said decision and has read relevant head-notes E , F , G , H , I , J , K and L of the cited decision and has hammered that the embargo in Order 8 Rule 1 created by the amended Code of Civil Procedure should not be construed as a mandatory scheme and as observed by the Apex Court, it may be held to be a directory in the background of the facts and circumstances of the present case and the petitioners may be permitted to submit the written statement. The Apex Court in the decision of the Kailash (supra) has summarized the conclusion in paragraph:46 of the decision. I have carefully g