The court can permit the defendant to file a written statement beyond the specified period, but the statutory provision of limitation cannot be ignored. An application for rejection of the plaint must be decided based on the plaint averments, and the suit can be dismissed if it is found to be barred by any law.

Initially order dated 26.06.2007 passed in Title Suit No. 33 of 2003 by which the application under Order VII Rule 11 and Order XXIII Rule 3, 3-A C.P.C read with Section 151 C.P.C was rejected, this writ petition was filed. After filing of this writ petition I.A. No. 2758 of 2007 was filed by the petitioners seeking amendment in the writ petition for incorporating challenge to order dated 19.06.2004 by which the defendant nos. 1, 2 and 5 were debarred from filing written statement. I.A. No. 2758 of 2007 was allowed on 11.09.2012.

2. Title Suit No. 33 of 2003 was instituted by Smt. Khokhani Devi for a decree of declaration that preliminary and final decrees passed in Title Suit No. 29 of 1984 were forged, fabricated, fraudulent as well as void, illegal and inoperative, not binding on her. A decree of partition for plaintiff's half share in the schedule “D” property and a decree of declaration of plaintiff's right, title and interest over schedule “CI” properties are the reliefs sought by the plaintiff. In the pending suit, the defendants appeared on 03.12.2003 and by an order dated 19.06.2004 defendant nos. 1, 2 and 5 were debarred from filing written statement. In the meantime, an application under Order VII Rule 11 C.P.C and Order XXIII Rule 3, 3-A C.P.C read with Section 151 C.P.C was filed by the defendants for rejection of the plaint on the ground that in view of judgment and decree in Title Suit No. 29 of 1984, the suit was barred by res-judicata.

3. Contending that in view of Rule 3-A to Order XXIII C.P.C a suit on the ground that the decree has been obtained by playing fraud is barred and therefore Title Suit No. 33 of 2003 is liable to be dismissed, Mr. A.K. Choudhary, the learned counsel for the petitioners assails the legality of the impugned order dated 26.06.2007. On debarment of the defendant nos. 1, 2 and 5 from filing written statement, the learned counsel for the petitioners submits that normally parties should be permitted to contest the suit on merits and therefore these defendants should have been granted opportunity, may be by imposing cost, to file written statement in Title Suit No. 33 of 2003.

4. Order VIII Rule 1 C.P.C reads as under :

“The defendant, shall file written statement within 30 days from the date of service of summons on him, present a written statement of his defence :

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

5. By now it is well-settled that the period of limitation provided under Order VIII Rule 1 C.P.C is binding on the parties but not on the Court and in an appropriate case the Court may permit the defendant to file written statement. However, the period of limitation provided under Order VIII Rule 1 C.P.C cannot be ignored in such a manner that this statutory provision is rendered nugatory. The defendant nos. 1, 2 and 5 who appeared in Title Suit No. 33 of 2003 on 03.12.2003, in spite of 12 adjournments when did not file written statement, by an order dated 19.06.2004 they were debarred from filing written statement. In the application for amendment or in the writ petition, no reason has been indicated by these defendants why in spite of 12 adjournments they have not filed written statement.

6. Accordingly, finding no infirmity in order dated 19.06.2004 challenge to this order fails.

7. On legality of the impugned order dated 26.06.2007 it needs to be recorded that Rule 3-A to Order XXIII C.P.C provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This Rule refers to a compromise which in law is not lawful and if on the basis of such a compromise a decree has been passed, no suit shall lie. Plea that decree in a suit has been obtai