JUDGMENT :

ASHOKKUMAR C. JOSHI, J.

1. Rule.

2. This petition, under Article 227 of the Constitution of India, the petitioner-original defendant No. 2 has prayed for to issue a writ of certiorari or any other writ, order or direction, in the nature of writ of certiorari, by quashing and setting aside the order dated 21.08.2019 passed by the learned Additional Civil Judge, Bodeli in the application Exh. 18 in Regular Civil Suit No. 50 of 2018 and the order dated 13.01.2020 passed by the learned Additional District Judge, Chhotaudepur below Exh. 6 in Misc. Civil Appeal No. 27 of 2019 and further be pleased to permit the filing of the written statement.

3. At the outset, it may be noted that though served and although sufficient opportunity is given to the respondents, they have put in no appearance. Accordingly, the Court had no option but to proceed with the matter.

4. The learned advocate for the petitioner-original defendant No. 2 submitted that the respondent No. 1-original plaintiff has filed a suit being Regular Civil Suit No. 50 of 2018 before the concerned Civil Court at Bodeli for declaration and permanent injunction and partition in respect of the suit property being agricultural land bearing survey Nos. 123, 127, 196, 240, 244 and others, situated at Village: Nava Timberva, Taluka: Bodeli, District: Chhotaudepur. In the said suit, the petitioner-defendant No. 2 was duly served with the summons, however, could not file his written statement in time and hence, the learned Civil Court concerned, closed the right of the petitioner to file the written statement. Against which, an application Exh. 18 was preferred by the petitioner, which came to be rejected vide order dated 21.08.2019, observing therein that, filing of written statement after a period of 120 days is not permissible. Against the said order, the petitioner preferred Misc. Civil Appeal No. 27 of 2019, which also came to be rejected by the learned Additional District Judge, Chhotaudepur vide order dated 13.01.2020 on the ground of maintainability of the said appeal as well as on merits.

4.1. The learned advocate for the petitioner submitted that the learned trial Judge has wrongly applied the decisions of the Apex Court. The learned advocate, relying upon the decision of the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Respondent: Union of India (UOI), he submitted that, as directed by the Apex Court, the period of 120 days is directory and not mandatory.

4.2. The learned advocate for the petitioner further submitted that the trial of the suit is yet to be commenced and the suit is at the stage of deciding the Exh. 5 application only and in the circumstance, allowing to file the written statement per se would not affect the right of the plaintiff in any way. The learned advocate for the petitioner, referring to the copies of death certificates produced on record, submitted that out of all the defendants, the defendant Nos. 1 and 3 have expired and their legal heirs are also required to be brought on record of the suit and in the circumstance, rejection of the said application would certainly jeopardize the right of the defendants. Besides, due to prevalent pandemic situation and the restriction therefor also, the petitioner could not pursue the matter.

4.3. The learned advocate for the petitioner, on instructions, submitted that the petitioner-defendant is ready and willing to pay the cost as may be imposed by the Court and accordingly, making such submissions, it is urged that this writ petition may be allowed, setting aside the impugned orders and the petitioner may be permitted to file the written statement in the pending suit.

5. It may be reiterated that though served and although sufficient opportunity is given to the respondents, no one has put in appearance.

6. Regard being had to the submissions advanced and perusing the material placed on record, it appears that against the orders passed by two learned Courts below, rejecting to open the right of