(1.) Rule. Heard finally.
(2.) This writ petition has been filed by the original plaintiffs under Articles 226 and 227 of the Constitution of India. Facts giving rise to this petition are as follows:
(3.) It has to be borne in mind that the plaintiffs had filed an application for temporary injunction in the suit. Defendants had immediately filed reply to this application and had seriously contested the application. Not only the defendants contested the temporary injunction application but have even filed two separate applications which go to the very root. It is submitted that the defendants have filed application under section 9-A of the Civil Procedure Code and also an application under Order 7, Rule 11 for rejection of plaint. It is submitted that both these applications are still pending. It is contended by learned Counsel that it is due to the fact that temporary injunction application being seriously contested and that two applications deciding the question of law of jurisdiction and plaint being defective were pending, the Written Statement could not be filed. He submits that this was in fact a sufficient reason to condone the lapse. He submits that in any case pursis treating reply to injunction application as Written Statement is filed and the said reply was filed within 30 days. He submits that therefore Written Statement could be said to be filed in fact within 30 days. I find much substance in the argument. What is always required to be seen is whether defendant was desirous of seriously contesting the suit. Here the conduct of the defendants shows that defendants filed reply to temporary injunction application and separately raised pleas with regard to jurisdiction and plaint being defective. Defendants never intended to let the suit be decreed by default. It must therefore be assumed that the defendants were under bona fide belief that the Written Statement could be filed later. There was no deliberate lapse at all. Supreme Court in Zolba Vs. Keshao & ors., 2008 3 BCR 1, has held that provisions of Rule 1, Order 8 are directory and delay could be condoned in exceptional circumstances. It is obvious that the provisions is directory and not mandatory. This Court in a decision reported in Pramod s/o Baliram Wavge Vs. Sahadev s/o Kisan Khadke,2007 3 MLJ 564, has observed as follows: