Challenge in this writ petition is to the order dated 13/01/2016 passed by Additional District and Sessions Judge No. 17, Jaipur Metropolitan, whereby the court has allowed an application filed by the respondent-plaintiff under Order 8 Rule 10 and Section 151 C.P.C. and ordered that written statement be struck out from the record.

2. For the purpose of deciding the instant writ petition, facts in brief are that the respondents/plaintiffs filed a suit for declaration wherein it is alleged that the petitioner/defendant has no right or titles over the suit property as per agreement dated 18/02/1981 and 05/01/1994. It was prayed by the respondents that the petitioner be directed to handover the possession of the suit property as per the layout plan.

3. An application under Order 8 Rule 10 C.P.C. was filed on 24/08/2013, by the plaintiffs/respondents praying therein that the right of the defendants to file written statement may be closed and the court may be proceeded further as provided in Order 8 Rule 10 C.P.C. Reply to the said application was filed by the petitioner/defendant wherein it was stated that the plaintiffs/respondents have neither annexed original documents nor the certified copies of the same with the plaint on which they relied to substantiate their claim. Without perusal of the documents, written statement cannot be filed. There are many applications pending, qua the maintainability of the suit itself, which are to be decided first before filing of the written statement. It is stated that the present application is premature and liable to be dismissed and opportunity may be given to file written statement to the defendant.

4. The application was allowed by the trial court vide impugned order dated 13/01/2016, therefore, the present writ petition has been filed by the petitioner/defendant.

5. It is submitted by learned senior counsel for the petitioner, Shri Ashok Gaur, that the written statement was filed by the petitioner on 12/01/2015 and the same was taken on record and no objection was raised by the plaintiffs at that stage. Thus, in these circumstances, application under Order 8 Rule 10 C.P.C. filed by the respondents had already become infructuous as the learned trial court had taken the written statement on record. The respondents did not challenge the order dated 12/01/2015, therefore, the direction of striking out the written statement of the petitioner without reversing the order dated 12/01/2015, is illegal. In spite of this fact, the trial court erroneously allowed the application under Order 8 Rule 10. The impugned order is manifestly perverse, contrary to law and therefore liable to be set aside. It is submitted that an application filed under Order 7 Rule 11 C.P.C. is still pending and the same has to be decided first before filing of the written statement. Several other applications are also pending and must be decided first. Without considering these facts, the trial court struck out the written statement of the petitioner which is manifestly wrong. The limitation of 90 days mandated by Order 8 Rule 1 is directory and not mandatory in nature. Thus, the learned trial court has discretion to allow the written statement to be filed even after completion of 90 days. It is submitted that an application under Order 1 Rule 8 filed by the respondents came to be dismissed by the trial court thus the learned trial court has committed an illegality by continuing with the suit. The learned senior counsel for the petitioner has placed reliance upon the judgment of this Court in the case of Mini Sindhu (Smt.) Vs. The Addl. Civil Judge (Jr. Div.) No.2 and Ors., RLW 2009(4) Raj. 3604 and the judgment of the Hon'ble Apex Court in the case of R.K. Roja Vs. U.S. Rayudu (2016 SCC Online SC 682) and the judgment of the High Court of Delhi in the case of Telefonaktiebolaget L.M Ericsson vs. Lava International Ltd. (IA No.25029/2015 in CS (O) No.764/2015, decided on 9th December, 2015).

6. On the other hand, it is