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Judgment
Prem Shankar Asopa, J.—Heard Learned Counsel for the parties.
1.1 With the consent of both the parties, the writ petition is taken up for final disposal at the admission stage.
This writ petition has been filed by the petitioner-defendants against the order dated 19.03.2005, wherein the written-statement has not been taken on the record.
Briefly stated the facts of the case are that the written-statement was not filed within 30-days from the date of service of the summon and thereafter, civil suit was dismissed in default on 06.09.2003 and the same was restored on 05.02.2005. Subsequent thereto the written-statement was filed on 19.02.2005 and the explanation given by the Learned Counsel for the petitioner-defendants is that the period of 90-days is to be counted from the date of restoration of the civil suit. The trial Court has held that the initial period of filing of the written statement under Order 8 Rule 1, CPC is 30-days, unless it is extended by 90-days, as per the proviso to the said Rule. It appears that the Court has taken the aforesaid provisions as mandatory, whereas the same has been held consistently by the Hon''ble Supreme Court and this Court as directory.
Considering the peculiar facts and circumstances of the case, the counsel for the petitioners submits that the period of dismissal is to be excluded and there was a justified reason for not filing the written-statement, which has not been properly considered by the trial Court.
Mr. Rajendra Prasad, the Learned Counsel for the respondents submits that the period could not have been excluded on account of the fact that the period of 30-days expired before dismissal of the civil suit in default.
I have considered the aforesaid submissions of the Learned Counsel for the parties and in my view the trial Court has committed an error in not excluding the period of dismissal and the other reasons given by the petitioners for non-filing of the written-statement within time appears to be just and proper, therefore, the impugned order dated 19.03.2005 is liable to be set aside.
In the result, the writ petition is allowed. The impugned order dated 19.03.2005 is set aside. The written statement is taken on the record.
There will be no order as to costs.