The present writ petition has been preferred under Article 227 of the Constitution of India mainly against the order passed by the learned Subordinate Judge-I, Dumka dated 10th September, 2007 in Title Suit NO.5 of 2007, whereby, the present petitioner (original defendant) is not allowed to file his written statement.

2. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears:

(i) that the present respondents are the original plaintiffs, who have instituted Title Suit No. 5 of 2007 and the present petitioner is the original defendant.

(ii) from the facts of the present case, that the present petitioner (original defendant) filed his appearance before the trial court on 20th April, 2007.

Thus, this to an initial point for filing of the written statement.

(iii) that thereafter, on 27th July, 2007, the original defendant tried to file written statement, but, on 27th July, 2007, the original defendant was barred from filing of the written statement.

(iv) that thereafter, an application was preferred by the original defendant on 28th August, 2007 alongwith written statement and with documents to recall the order dated 27th July, 2007, with cogent and convincing reasons, stated therein, especially that the petitioner was in jail, on the basis of complain filed by the plaintiff side, present petitioner being in jail, he was helpless to give proper instructions to .his lawyer and for arranging finance and also in collecting the documents etc., this infirmity is not an ordinarily infirmity. The trial court has lost sight of this fact, which is an error apparent on the face of record.

(v) that the party, who is original defendant is ready and willing to come to the court promptly and wants to file written statement alongwith documents despite the aforesaid greatest barrier that he was in jail. Trial Court ought to have appreciated that this is a good reason for extension of time to file written statement. The provision under Order VIII Rule 1 is not mandatory in nature. Court while rejecting the prayer for filing of the written statement ought to have been kept in mind the background of the party. social structure and the disability attached with the party. Sometimes, inherent disabilities like illiteracy, under developed or undeveloped areas, within the State of Jharkhand, sickness, period spent in jail, financial capabilities, non-availability of main member of the family and such other aspects, unless and until the court not knows the social background of the party, a mechanical justice may be delivered, court also ought to have kept in mind that we are not in need of mechanical justice. Justice hurried is justice buried. When any party' is coming to file written statement and if there is no deliberate delay or mala fide on the part of the party or if, there is gross negligence on the part of the party and though the party is capable and having sufficient means and then also, he is not filing a written statement, with a view to delay the disposal of the suit, in such circumstances, written statement can be denied to be tiled by the party. All aforesaid positive as well as negative circumstances, ought to be appreciated by the trial court before denial of the written statement in a suit. Suit is the first remedy available to the aggrieved party. Sometimes, defendants are also filing their counter claim. Defendant's written statement is most crucial, especially in deciding the disputes between the parties. Provision in Order VIII Rule 1 is directory in nature and not mandatory.

(vi) that the learned counsel for the petitioner (original defendant) has rightly relied upon a decision rendered by Hon'ble Supreme Court in the case of Kailash vs. Nanhku and Others as reported in 2005(4) SCC 480 [: 2005(4) JLJR (SC)1], especially, in paragraph nos. 27, 28, 34 and 35 which read as under:-

"27. Three things are clear.

Firstly, a careful reading of the language in which Order 8 Rule 1 h