JUDGMENT : DIVYESH A. JOSHI, J. 1. Rule. Learned advocate, Mr. Kaushal Jani waives service of notice of rule for respondent no.1. 2. By filing instant petition under Articles 226 and 227 of the Constitution of India as well as under the provision of the Civil Procedure Code, the petitioner, who is original defendant no.2, has challenge the order dated 08.12.2020 passed below Exh.18 by the learned Additional Sessions Judge, Court No.28, City Civil Court, Ahmedabad in Civil Suit No.2816/2015 as well as the order dated 08.12.2020 passed below Exh.19 by the learned Judge, Court No.28, City Civil Court, Ahmedabad in Civil Suit No.2816/2015, whereby learned Judge has not condoned the delay caused in filing the statement and reply to the notice of motion and also ordered to return the written statement and the reply to the notice of motion along with list of documents. 3. Heard learned advocate, Mr. Rathin Raval for the petitioner and learned advocate, Mr. Kaushal Jani for the respondent no.1. 4. Learned advocate for the petitioner submitted that the original plaintiff – respondent no.1 herein filed aforesaid civil suit inter alia praying for permanent injunction and recovery of vacant and peaceful possession of the suit property, wherein the notice came to be issued upon the petitioner and the original defendant no.1 and in pursuance thereto, the petitioner appeared before the court through advocate. Learned advocate, however, submitted that within time framed schedule, the petitioner could not file written statement to the plaint as also reply to the notice of motion and, hence, right to file written statement has been closed by the court concerned on 24.01.2017. Learned advocate submitted that however when the said fact came to the notice of the petitioner, the petitioner submitted an application on 13.10.2020 for condonation of delay of 4 years, 7 months and 15 days, caused in filing written statement, however without properly considering the facts of the learned, the learned City Civil Judge, by impugned orders, turned down the application and returned the written statement and reply to the notice of motion. Learned advocate submitted that because of some medical issues and other circumstances, which were beyond the control of the petitioner, the petitioner could not submit written statement within time framed schedule, however while submitting application, detailed reasons for such delay have been mentioned but it has not been properly considered. Learned advocate submitted that because of some medical issues and other circumstances, which were beyond the control of the petitioner, the petitioner could not submit written statement within time framed schedule, however while submitting application, detailed reasons for such delay have been mentioned but it has not been properly considered. Learned advocate, at this stage, has put reliance upon the order dated 09.05.2022 passed by the Hon’ble Supreme Court delivered in Civil Appeal No.3788/2022 (@ SLP (C) No.63/2022) in case of Bharat Kalra Vs. Raj Kishan Chabra and submitted that the case of the petitioner is squarely covered by the said decision. Learned advocate submitted that at the time of passing an order dated 20.04.2023, the Coordinate Bench of this Court granted permission to seek adjournment before the court concerned and at this stage, the suit is at the stage of framing of charge. It is, therefore, urged that considering the above facts the present petition may be allowed, otherwise, it would cause great prejudice to the petitioner. 5. On the other hand, learned advocate for the respondent no.2 has opposed the present petition with a vehemence and submitted that there is no error committed by the learned City Civil Judge while passing impugned order, which does not require any interference at the hands of this Hon’ble Court. Learned advocate submitted that in fact, there was gross delay of more than 4 years in filing such application after closing of the right of the petitioner and it has rightly been considered by the learned Judge. Learned advocate submitted that in fact, after filing of appearance, around 7 to 8 times, time was sought for filing written statement, which was also granted by the learned trial court, however despite granting of time, the petitioner – original defendant did not turn up and file written statement and, thereafter, the right was closed and, hence, no leniency may be shown upon the petitioner. It is, therefore, urged that this petition may not be entertained. 6. It is, therefore, urged that this petition may not be entertained. 6. Having heard learned advocates for the parties and having gone through the material and evidence available on record including the impugned orders, it is found out that the original plaintiff has filed suit, wherein notice was issued upon the original defendants and they have appeared through advocate but did not file written statement within time framed scheduled and, hence, right to file written statement was closed and, thereafter a period of more than 4 years, an application for opening of right to file written statement was submitted along with an application for condonation of delay, which was rejected by the learned Judge by impugned order, which led to filing of the present petition. However, it is required to be noted that admittedly there is huge delay but for the just and fair trial, opportunity is required to be given to the petitioner to file his written statement, therefore, the petitioner cannot be deprived of his legitimate rights to file written statement. 7. At this stage, I would like to put reliance upon the order of the Hon’ble Supreme Court in case of Bharat Kalra (supra) upon which reliance has been placed by learned advocate for the petitioner, wherein the Hon’ble Supreme Court has passed following order, “Admittedly, the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Act, 2005. Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as ‘Kailash V. Nankhu & Ors.” reported in (2005) 4 SCC 480 .In view of the aforesaid judgment, we find that the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing of the written statement is unreasonable.Consequently, we allow the present appeal. The order passed by the High Court is set aside. The written statement already filed is taken on record.” 8. The order passed by the High Court is set aside. The written statement already filed is taken on record.” 8. Thus in view of the facts of the case and in view of the observations made by the Hon’ble Supreme Court in the aforesaid decision, it is found out that such a delay in filing the written statement can be subjected to the compensation with costs however denying the benefit of filing the same as per the literal interpretation of the concerned provision was considered to be unreasonable. Therefore the party cannot be deprived of his legitimate right to file written statement. But admittedly, there is gross delay in filing written statement, therefore, cost should be imposed upon the petitioner. 9. In view of the above facts, this petition is allowed. The the order dated 08.12.2020 passed below Exh.18 by the learned Additional Sessions Judge, Court NO.28, City Civil Court, Ahmedabad in Civil Suit No.2816/2015 as well as the order dated 08.12.2020 passed below Exh.19 by the learned Judge, Court No.28, City Civil Court, Ahmedabad in Civil Suit No.2816/2015 are hereby quashed and set aside on a condition that the petitioner shall deposit an amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) before the District Legal Service Authority of the court concerned within a period of 30 days from today, failing which, right to file written statement will be closed automatically. The learned Judge concerned shall accept the written statement as also reply to the notice of motion along with list of documents and proceed further with the trial of plaint in accordance with law. It is expected from both the sides to cooperate in the trial and shall not seek unnecessary adjournment. 10. Rule is made absolute to the aforesaid extent. Direct service is permitted.