The petitioners, who are defendant Nos.4 and 5,

have preferred this writ petition seeking to quash the

order dated 18.03.2021 passed in O.S.No.93/2016 by

the court of Senior Civil Judge and J.M.F.C., Deodurga

wherein the petitioners' application to permit them to

file their written statement was allowed subject to

payment of cost of Rs.100/- per day and their prayer for

filing of counter claim was rejected.

2. Heard the learned counsel for the petitioners as

well as the learned counsel for the respondents.

Respondent

Nos.1

to

3

had

filed

O.S.No.93/2016 (Old O.S.No.160/2014) before the trial

court seeking partition and separate possession of the

suit schedule property and they claimed 3/12^th share in

the suit schedule properties. In the said suit, the

petitioners, who are defendant Nos.4 and 5, had filed an

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application on 02.03.2021 to permit them to file their

written statement and also the counter claim. The said

application was opposed by the plaintiffs and the trial

court vide the order impugned has partly allowed the

application and permitted the petitioners to file their

written statement subject to payment of cost of

Rs.100/- per day and has refused to permit the

petitioners to file their counter claim. Being aggrieved

by the same, the petitioners are before this court.

4. Learned counsel for the petitioners submits that

the cost imposed by the trial court is unjust and the

same runs to more than Rs.2 lakhs and the petitioners

are not in a position to pay the same. He submits that

in identical circumstances, the trial court had imposed

only a cost of Rs.1,000/- and has condoned the delay of

nearly 5 years and permitted the defendants in the said

case to file their written statement, but in the case on

hand, the trial court has imposed exemplary cost, which

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has caused serious hardship. He submits that the

plaintiffs' evidence is not yet completed and therefore,

there is no justification on the part of the trial court to

reject the counter claim. He also submits that if the

petitioners are not permitted to file their written

statement and counter claim, their case would be

seriously prejudiced and virtually they would be non-

sued.

5. Per contra, though the learned counsel for the

plaintiffs has sought to defend the order passed by the

trial court, by contending that no satisfactory reasons

have been assigned by defendant Nos.4 and 5 for the

inordinate delay of more than 5 years caused in filing

the written statement and counter claim, he does not

dispute the fact that the suit is only at the stage of

recording of the plaintiffs' evidence.

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6. Considering the nature of the relief sought for in

the suit and also the stage of the suit, I am of the

considered view that the trial court was not justified in

rejecting the petitioners' prayer to file counter claim and

also in condoning the delay and permitting the

petitioners to file their written statement on payment of

cost of Rs.100/- per day. As rightly contended by the

learned counsel for the petitioners, the delay in filing the

written statement is more than 5 years and therefore,

the cost imposed on the petitioners would run into lakhs.

The petitioners being agriculturists would not be in a

position to pay such a huge cost and there is absolutely

no reason assigned by the trial court for imposing such a

huge cost on the petitioners.

7. Learned counsel for the petitioners has pointed

out that in almost identical circumstances, the very

same court has condoned the delay by imposing a cost

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of Rs.1,000/- and has permitted the defendants in the

said cases to file their written statement.

8. Considering all these aspects of the matter, I

am of the considered view that the order impugned

passed by the trial court to the extent it relates to

imposing cost of Rs.100/- per day for the delayed period

of filing the written statement and also rejecting the

petitioners' prayer for filing the counter claim cannot be

sustained. Accordingly, the following order:

The writ petiti