ORDER I.A. No. 721 of 2016 By the Court - This application been filed seeking amendment to challenge order dated 20.05.2005 whereby, defendants were debarred from filing written statement. For the reasons stated in the application and there being no serious objection from the respondents, I.A. No. 721 of 2016 is hereby allowed. W.P(C) No. 1554 of 2011 Aggrieved by orders dated 25.05.2007 and 21.08.2010 in Title Suit No. 3 of 2004, the present writ petition been filed. 2. Title Suit No. 3 of 2004 was instituted for declaration of plaintiffs' right, title and interest over the suit land and for a decree of confirmation of their possession. A further declaration that gift deed dated 05.03.1984 executed by defendant no. 1 in favour of defendant no. 2 is void ab initio and not binding upon the plaintiffs and the same is liable to be cancelled was also sought by the plaintiffs. The private defendants namely, Dubki Oraon and Gandhauri Orain did not appear in the suit and the suit was fixed for ex-parte hearing vide order dated 02.07.2004 however, the said order was recalled on 09.03.2005, still the defendants did not file written statement within time and they were debarred from filing written statement. In the meantime, the defendant no. 1 died and vide order dated 16.05.2006, her two daughters were substituted in her place. Summons were issued upon the substituted defendants on 14.08.2006 however, the defendants again did not appear in the suit and it was again set for ex-parte hearing against the substituted defendants. The substituted defendants filed petition dated 16.02.2008 for recall of order dated 25.05.2007 and defendant no. 2 also filed petition for recall of order dated 20.05.2005. Both the applications were dismissed vide order dated 21.08.2010, against which the present writ petition been filed. The petitioners are legal heirs and successors of the original defendant nos. 1 and 2. 3. Heard the learned counsel for the parties and perused the documents on record. 4. Mr. Atanu Banerjee, the learned counsel for the petitioners submits that the service report discloses that summons were not served upon the substituted defendants and thus, they have no knowledge of the pending suit still, vide order dated 25.05.2007 the suit was fixed for ex-parte proceeding. 5. The learned counsel for the respondents submits that defendant nos. 1(a) and 1(b) are real sisters and service upon defendant no. 5. The learned counsel for the respondents submits that defendant nos. 1(a) and 1(b) are real sisters and service upon defendant no. 1(a) been found valid and accordingly, the trial court rightly concluded that defendant no. 1(b) had also the knowledge of the pending suit. 6. A perusal of impugned order dated 21.08.2010 discloses that the trial court held that summons were served upon defendant no. 1(a) and in so far as defendant no. 1(b) is concerned, there was no service report on the record. Vide order dated 16.05.2006 the defendant no. 1 was substituted by her two daughters. Order dated 21.08.2010 further discloses that the trial court rejected the application filed on behalf of defendant nos. 1(a) and 1(b) disbelieving the plea taken by them. It further appears that in so far as, application filed by defendant no. 2 is concerned, her application was also dismissed on a similar ground. No doubt, the applications dated 16.02.2008 were filed belatedly however, considering the nature of the defendants' rights involved in the suit property, in my opinion, the defendants must be granted an opportunity to contest the suit, on merits. 7. It appears that on 15.06.1983, permission under Section 46 of the Chhotanagpur Tenancy Act was granted by the SDO, Lohardaga to defendant no. 1 to transfer land in favour of defendant no. 2 who is his daughter. The gift-deed was executed by defendant no. 1 on 05.03.1984 in respect of 19.45 acres land in RS Khata No. 104 appertaining to different RS plots in village Palmi and the said land been mutated in the name of defendant no. 2 vide order dated 11.12.2000 in Mutation Case No. 85 of 2000-2001. The plaintiffs filed mutation appeal against order dated 11.12.2000 which was dismissed by the Land Reforms Deputy Commissioner, Lohardaga vide order dated 16.08.2002 and Mutation Revision No. 50 R 15/2002 filed by the plaintiffs also stood dismissed on 16.08.2002. Thereafter, the plaintiffs instituted Title Suit No. 3 of 2004 on 06.02.2004. 8. The proviso to Order 8, Rule 1 CPC is not mandatory in nature and it is open to the Court to permit the defendant to file written statement if the circumstances in the case so permit. In an adversarial system no party should ordinarily be denied the opportunity to contest the claim on merits. 8. The proviso to Order 8, Rule 1 CPC is not mandatory in nature and it is open to the Court to permit the defendant to file written statement if the circumstances in the case so permit. In an adversarial system no party should ordinarily be denied the opportunity to contest the claim on merits. Therefore, unless compelled by express and specific provision in law, a procedural enactment should not be construed in a mechanical manner. In the present case, observation of the trial judge in impugned order dated 21.08.2010 indicates that the order been passed in a mechanical manner. In "Rani Kusum (Smt.) v. Kanchan Devi (Smt.)", (2005) 6 SCC 705 , the Hon'ble Supreme Court held that the statutory provision under Order 8, Rule 1 CPC does not create a bar upon the power of the court to grant time even beyond the extended statutory period of 90 days. In "Kailash v. Nanhku", (2005) 4 SCC 480 , the Hon'ble Supreme Court observed as under: “46.(iv) "The purpose of providing the time schedule for filing the written statement under Order 8, Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the noncompliance. The provision being in the domain of the procedural law, it to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8, Rule 1 CPC is not completely taken away." 9. Considering the aforesaid facts, I am of the considered view that it would serve the interest of justice if the defendants are permitted to contest the suit on merits. Accordingly, the writ petition is allowed and impugned orders dated 20.05.2005, 25.05.2007 and 21.08.2010 are set aside. The written statement filed by the defendant no. 2 on 21.12.2010 shall be taken on record however, with cost of Rs. 10,000/- to be paid to the plaintiffs, within four weeks. The trial court shall proceed with the suit, expeditiously. 10. Interim order dated 08.02.2016 stands vacated. 11. The written statement filed by the defendant no. 2 on 21.12.2010 shall be taken on record however, with cost of Rs. 10,000/- to be paid to the plaintiffs, within four weeks. The trial court shall proceed with the suit, expeditiously. 10. Interim order dated 08.02.2016 stands vacated. 11. A copy of the order be transmitted to the trial court through FAX, forthwith. Petition allowed.