IMPORTANT POINT
The court allowed the defendants to file their written statement due to procedural irregularities and lack of awareness of non-filing.

ORDER :

(Rekha Borana, J.)

1. The present writ petition has been preferred against the order dated 03.07.2024 passed by the Additional District Judge, Pokaran in Civil Original No.279/2017 (525/2016) (29/2013) whereby the application under Order 8 Rule 1, CPC as preferred on behalf of defendant Nos.1 & 2 has been rejected.

2. Vide the application under Order 8 Rule 1, CPC, it was prayed on behalf of defendant Nos.1 & 2 that they had signed the written statement as prepared by their the then counsel and handed over the same to him. However, the same was not filed by the counsel and subsequently, the matter was transferred to the newly constituted Additional District Court at Pokaran. When the matter was transferred to Pokaran, it was fixed for plaintiff evidence. Therefore, the counsel appointed at Pokaran was under the impression that the written statement had already been filed. It is only on 16.05.2024, when the counsel read the order-sheet of the said date, that he came to know that the written statement had not been filed on behalf of the said defendants. Therefore, the application under Order 8 Rule 1, CPC was preferred on the very next date.

3. Learned counsel for the petitioners submits that it was only because of the matter been transferred from Jaisalmer to Pokaran that the fact of written statement having not been filed did not come to the knowledge of the defendants. They were under the impression that the written statement as signed by them was filed by their counsel at that point of time.

4. Learned counsel further submits that even otherwise, on 11.08.2016, no effective order to close defendant evidence was passed by the Court and the matter was directed to be posted for framing of issues. Therefore, there being no formal order of closing the defendant evidence, the fact missed the notice of the counsel too.

5. Learned counsel further submits that after completion of the plaintiff evidence, the matter was posted for defendant evidence and therefore too, the fact of written statement having not been filed, did not come to the knowledge of the counsel for the defendants. It seems that even the plaintiff as well as the Court were also not aware of the said fact as had they been aware, the matter would not have been posted for defendant evidence. Because the matter was posted for defendant evidence, learned counsel for the defendants too, proceeded on with the said assumption.

6. Per contra, learned counsel for the respondents submits that the averment of the defendants not being aware of the written statement having not been filed, is totally misconceived as after the defendants having been proceeded ex parte, an application under Order 9 Rule 7, CPC was preferred on their behalf which was allowed on 16.04.2016. While allowing the said application, the Court specifically granted one last opportunity to the defendants to file their written statement and the matter was directed to be posted on 28.05.2016. On 28.05.2016, last opportunity was granted to file written statement at the cost of Rs.1,000/-. The said was the last order-sheet before the Court at Jaisalmer. Then the matter was transferred to District Court at Pokaran wherein after service, learned counsel for the defendants put in appearance on 08.03.2018 for the first time. On the said date, time was sought by counsel for the plaintiff for plaintiff evidence and the matter proceeded on for plaintiff evidence. Learned counsel therefore, submits that it is crystal clear on record that despite time been granted even on cost, written statement was not filed on behalf of the defendants and it cannot be argued on their behalf that they were not aware of the said fact.

7. With the above submissions, learned counsel for the respondents submits that order impugned be affirmed and the writ petition be dismissed.

8. Heard learned counsel for the parties and perused the material available on record.

9. For the proper adjudication of the fact whether the petitioner-defendants dese