Bhachawat, J.- 1. This is a revision by the legal representatives of defendant No.2 against the order of the Fourth Civil Judge, Class II, Gwalior in Civil Suit No. 532-A/72, dated 6-4-1973 whereby he bas rejected the I.A. No. 8 filed by defendant No.2 for permission to file a written statement.

2. The revision has arisen in the following manner. The plainiffs-non-applicants No.1 to 4 herein have filed a suit against the non-applicant No.5 herein (defendant No.1 in the suit) and against one Kripa Shanker who was defendant No.2 now dead The present applicants are his legal representatives. The defendant No.2 had entered appearance even when the summons of the suit was not served on him through Shri R. D. Jain, Advocate on 2-3-1973 on his behalf stated that day that defendant No. 2 did not want to file written statement, whereupon the trial Court closed the right of defendant No.2 to file written statement. The relevant part of the order sheet dated 2-3-1973 is as under :-

^^Jh tSu vfHkHkk”kd mUgksaus izfroknh uaŒ 2 dh vkSj ls esekS is’k fd;k ,oa ?kksf”kr fd;k fd os vxyh is’kh ij odhy i= ,oa jftLVMZ irk is’k djsxsaA os ;g Hkh ?kksf”kr djrs gSa fd izfroknh uŒ 2 dh vksj ls dksbZ tckonkok os is’k ugha djuk pkgrsA lc izfroknh uaŒ 2 dk tckonkok is’k djus dk gd lekIr fd;k tkrk gSA^^

On this date, the trial Court also framed a preliminary issue. Thereafter, on 6-4-1973, an application on behalf of defendant No 2, I.A. No. 8 along with the written statement was tiled for permission to tile the written statement on the ground that he did not posses copy of the plaint and he was told by defendant No 1 that no relief was claimed against him; therefore, he had declined to file the written statement, but later on he knew that there was a relief claimed against him also. The trial Court rejected the application vide the impugned order which is contained in paragraph 4 of the order.

3. The trial Court has rested its conclusions on two grounds, namely; first, that the contention of defendant No.2 that for want of a copy of the plaint, he did not know that there was a relief claimed against him also is not genuine inasmuch as there was a common counsel for defendant No.1 and No.2 and through that counsel, the defendant No.2 must have known the contents of the plaint and second, the failure of defendant No.2 to file written statement was an admission of the claim of the plaintiff and as such permiting defendant No. 2 now to file written statement would be depriving the plaintiffs of a right that accrued to them on account of this admission of defendant No.2.

4. At this stage, it would be pertinent to state that except the framing of the preliminary issue relating to the valuation of the suit for the purpose of Court fee, the case has not proceeded further. The decision of this revision involves two questions:

(1) Whether the effects of the declaration by defendant No.2 that he did not want to file written statement is that he bad admitted the claim of the plaintiffs and the connequence of permitting him to file the written statement would be to allow him to withdraw that admission, the permission is rightly rejected, and

(ii) Whether the aforesaid ground for permission is genuine.

5. I would take up the discussion of the points ad seriatim.

6. Order 8 of the Code of Civil Procedure deals with written statement and set off There is no provision contained in Order 8 which provides that if defendant on service of notice of suit chooses not to file a written statement, it would be deemed that he admitted the claim of the plaintiff. Order 8 rule 5 which is the nearest provision on this question reads thus: -

"R. 5. Specific denial-Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved othe