Rajasthan High Court – Jodhpur
Hariya vs Jodha (2025:Rj-Jd:30244) on 11 July, 2025
[2025:RJ-JD:30244]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2494/2020
Legal Representatives of Hariya
1/1. Gaja Ram S/o Late Shri Hariya,
1/2. Vachna S/o Late Shri Hariya,
[Both by caste Rebari resident of Fagotara, Tehsil-
Bhinmal, Distt-Jalore]
1/3. Mafii W/o Shri Bhola by caste Rebari, Resident of
Dhunadia, Tehsil-Bagoda, Distt-Jalore.
1/4. Manju W/o Shri Vaga by caste Rebari, Resident of
Reh,Tehsil, Tehsil-Bagoda, District-Jalore.
1/5. Pavi W/o Shri Okhaji by caste Rebari, Resident of Sankad,
Tehsil-Sanchore, Distt-Jalore.
2. Talsa S/o Nathaji, Aged About 63 Years, By Caste Rebari,
Resident Of Fagotara, Tehsil Bhinmal, District Jalore.
3. Amara S/o Nathaji, Aged About 58 Years, By Caste
Rebari, Resident Of Fagotara, Tehsil Bhinmal, District
Jalore.
4. Deepa @ Deeparam S/o Talchha, Aged About 36 Years,
By Caste Rebari, Resident Of Fagotara, Tehsil Bhinmal,
District Jalore.
5. Gajja S/o Hariya, Aged About 46 Years, By Caste Rebari,
Resident Of Fagotara, Tehsil Bhinmal, District Jalore.
----Petitioners
Versus
Jodha S/o Lumbaji, By Caste Rebari, Resident Of Fagotara, Tehsil
Bhinmal, District Jalore.
----Respondent
Connected With
S.B. Civil Writ Petition No. 1634/2020
Legal Representatives of Hariya
1/1. Gaja Ram S/o Late Shri Hariya,
1/2. Vachna S/o Late Shri Hariya,
[Both by caste Rebari resident of Fagotara, Tehsil-
Bhinmal, Distt-Jalore]
1/3. Sukhi W/o Shri Bhola by caste Rebari, Resident of
Dhunadia, Tehsil-Bagoda, Distt-Jalore.
1/4. Manju W/o Shri Vaga by caste Rebari, Resident of
Reh,Tehsil, Tehsil-Bagoda, District-Jalore.
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[2025:RJ-JD:30244] (2 of 7) [CW-2494/2020]
1/5. Puni W/o Shri Okhaji by caste Rebari, Resident of Sankad,
Tehsil-Sanchore, Distt-Jalore.
2. Talsa S/o Shri Nathaji, Aged About 63 Years, By Caste
Rebari, Resident Of Fagotara, Tehsil- Bhinmal, District-
Jalore.
3. Amara S/o Shri Nathaji, Aged About 58 Years, By Caste
Rebari, Resident Of Fagotara, Tehsil- Bhinmal, District-
Jalore.
4. Deepa @ Deeparam S/o Shri Talchha, Aged About 36
Years, By Caste Rebari, Resident Of Fagotara, Tehsil-
Bhinmal, District- Jalore.
5. Gajja S/o Shri Hariya, Aged About 46 Years, By Caste
Rebari, Resident Of Fagotara, Tehsil- Bhinmal, District-
Jalore.
----Petitioners
Versus
Jodha S/o Shri Lumbaji, By Caste Rebari, Resident Of Fagotara,
Tehsil- Bhinmal, District- Jalore.
----Respondent
For Petitioner(s) : Mr. Amit Mehta
For Respondent(s) : ---
HON'BLE MR. JUSTICE SANDEEP SHAH
Order
11/07/2025
S.B. Civil Writ Petition No. 1634/2020:-
1. Learned counsel for the petitioners submits that the writ
petition has been rendered infructuous by efflux of time.
2. Accordingly, the present writ petition is thus, dismissed as
having been rendered infructuous.
S.B. Civil Writ Petition No. 2494/2020:-
1. The petitioners have filed the present writ petition being
aggrieved by the order dated 06.01.2020 passed by the learned
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[2025:RJ-JD:30244] (3 of 7) [CW-2494/2020]Civil Judge, Bhinmal, whereby the petitioner’s right to file a
written statement was closed, and the matter was fixed for the
evidence of the plaintiff.
2. Learned counsel for the petitioners submit that the service of
notice was effected upon the petitioners-defendant on
18.07.2018, and on the very next date, i.e., 31.07.2018, the
petitioners filed an application for stay of suit under Section 10 of
the CPC. It is submitted that the matter thereafter remained
pending for reply to the said application and not for filing of the
written statement. Subsequently, ex parte proceedings were
initiated against the petitioners on 27.02.2019. On the next date,
i.e., 09.03.2019, the matter was placed before the Lok Adalat.
Thereafter, the case was repeatedly listed on 08.04.2019,
08.05.2019, 28.05.2019, and 12.07.2019 for arguments / reply to
the application filed by the petitioners under Section 10 CPC.
Subsequently, on 09.09.2019, the ex parte proceedings initiated
against the petitioners were set aside, and the matter was
thereafter listed on 01.10.2019, 30.10.2019, 31.10.2019,
20.11.2019, and 10.12.2019 for arguments on the application
under Section 10 CPC, which was ultimately dismissed vide order
dated 19.12.2019.
3. It has been asserted that on the next date, i.e., 06.01.2020
itself, the learned Trial Court proceeded with the closing of the
right of the petitioners / defendants to file written statement,
without even granting an opportunity upon payment of costs.
Learned counsel submits that a very hyper-technical approach has
been adopted by the learned Trial Court and the written statement
is not permitted to be taken on record, which has caused serious
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prejudice to the petitioners. Therefore, the impugned order
deserves to be quashed and set aside.
4. This Court, vide order dated 25.02.2020, issued notice to the
respondents and directed the matter to be connected with S.B.
Civil Writ Petition No.1634 of 2020 titled “Hariya & Ors. v. Jodha“,
which was filed by the petitioners himself, challenging the order
whereby the application under Section 10 CPC was rejected.
5. In the above-mentioned case, this Court, vide order dated
11.02.2020, had stayed further proceedings in Original Suit
No.28/2018 titled “Jodha v. Hariya & Ors.” pending before the
Court of Civil Judge, Bhinmal.
6. In the present case, despite service of notice, no one has
entered appearance on behalf of the respondent. As per the
record, notice was served on 07.01.2021, and till date, there has
been no representation on behalf of the respondent.
7. Having considered the facts and circumstances of the case
and upon perusal of the record, this Court finds that the order
sheets of the learned Trial Court reveal that the matter was
continuously being listed either for arguments on the application
under Section 10 CPC filed by the petitioners or for filing of reply
to the said application. Subsequently, ex parte proceedings were
initiated against the petitioners on 27.02.2019, which were later
set aside, on an application under Order IX Rule 7 CPC vide order
dated 09.09.2019. Thereafter, the matter was listed on
01.10.2019, 20.10.2019, 31.10.2019, 20.11.2019, and
10.12.2019 for arguments on the petitioners’ application under
Section 10 CPC.
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8. The said application under Section 10 CPC was dismissed by
the learned Trial Court vide order dated 19.12.2019. On the very
next date, i.e., 06.01.2020, the impugned order came to be
passed, whereby the right of the petitioners to file a written
statement was closed without affording any sufficient opportunity
or even permitting the petitioners to file the written statement
upon payment of costs. The learned Trial Court appears to have
relied upon the earlier order dated 18.07.2018, which granted the
last opportunity to the petitioners to file their written statement.
However, it is evident from the subsequent proceedings,
particularly after 27.02.2019, that ex parte proceedings were
initiated against the petitioners and then the same was restored
by the order dated 09.09.2019. Thereafter, the matter remained
pending on account of the petitioners’ application under Section
10 CPC, which was ultimately dismissed. Hence, the impugned
order dated 06.01.2020 appears to have been passed without
considering the intervening developments and without giving due
opportunity to the petitioners.
9. Needless to say, Rule 1 of Order VIII CPC has been held to
be directory in nature by the Hon’ble Apex Court in the case of
“Salem Advocate Bar Association, Tamil Nadu v. Union of India
(2005),” in (Civil Writ Petition No.496/2002), AIR 2005 SC 3353,
on 02.08.2005, held as under:-
“21 In construing this provision, support can also be had from
Order 8 Rule 10 which provides that where any party from
whom a written Statement is required under Rule 1 or Rule 9,
fails to present the same within the time permitted or fixed by
the court, the court shall pronounce judgment against him, or
make such other order in relation to the suit as it thinks fit. On
failure to file written statement under this provision, the court
has been given the discretion either to pronounce judgment(Downloaded on 15/07/2025 at 09:32:55 PM)
[2025:RJ-JD:30244] (6 of 7) [CW-2494/2020]against the defendant or make such other order in relation to
the suit as it thinks fit. In the context of the provision, despite
use of the word “shall”, the court has been given the discretion
to pronounce or not to pronounce the judgment against the
defendant even if the written statement is not filed and instead
pass such order as it may think fit in relation to the suit. In
construing the provision of Order 8 Rule 1 and Rule 10, the
doctrine of harmonious construction is required to be applied.
The effect would be that under Rule 10 Order 8, the court in its
discretion would have the power to allow the defendant to file
written statement even after expiry of the period of 90 days
provided in Order 8 Rule 1. There is no restriction in Order 8
Rule 10 that after expiry of ninety days, further time cannot be
granted. The court has wide power to “make such order in
relation to the suit as it thinks fit”. Clearly, therefore, the
provision of Order 8 Rule 1 providing for the upper limit of 90
days to file written statement is directory. Having said so, we
wish to make it clear that the order extending time to file written
statement cannot be made in routine. The time can be extended
only in exceptionally hard cases. While extending time, it has to
be borne in mind that the legislature has fixed the upper time-
limit of 90 days. The discretion of the court to extend the time
shall not be so frequently and routinely exercised so as to nullify
the period fixed by Order 8 Rule 1.”
10. The petitioners have furnished sufficient reasons for not
being able to file the written statement within the stipulated time,
as the matter remained pending consideration on the application
under Section 10 CPC and ex-parte proceedings being drawn
against them. Therefore, the approach adopted by the learned
Trial Court in closing the petitioner’s right to file the written
statement without considering the intervening developments is not
justified. Accordingly, the impugned order dated 06.01.2020 is set
aside. The petitioners are permitted to file the written statement
before the learned Trial Court within a period of one month from
today, subject to payment of cost of Rs.5,000/- to be paid to the
respondents.
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11. The learned Trial Court is directed to take the written
statement filed by the petitioners on record and thereafter
proceed with the adjudication of the suit in hand.
12. S.B. Civil Writ Petition No.2494 of 2020 stands disposed of
accordingly.
(SANDEEP SHAH),J
291-292-devrajP/-
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