1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3016/2008 Sayyed Mahfooz Ali PETITIONER VS. Mehmood Ahmed Siddiqui & Ors. RESPONDENTS Mr.R.A.Thorat for the petitioner Mr.A.R.Shaikh for Res.nos.1 & 2 CORAM: MRS.MRIDULA BHATKAR,J. DATE: 12TH JUNE,2009 P.C. . Heard. 2[ This petition is filed by the petitioner challenging the order of the City Civil Court ,Bombay dated 4/4/2008 in Notice of Motion no.657/2008 refusing to accept the written statement which was filed by the defendant after the stipulated period of 90 days as prescribed under Order 8 Rule 1 of the Code of Civil Procedure .The defendant no.1 has received summons on 2/11/2007. 90 days period got over on 14/2/2008 and on the same day as the written statement was not filed by the defendants , ‘no W.S.’order was passed by the learned Judge. Thereafter the matter appeared on 3/3/2008. However, the defendant remained absent on 2 that day. On 13/3/2008 he took out Notice of Motion praying that , ‘no W.S ‘.order is to be set aside. 3] The learned counsel appearing for the petitioner submits that the defendant could not file written statement because much time was consumed in settling and resettling the written statement and in between he also changed his advocate. The process of settling and resettling of written statement was delayed , so he could not file it on 13/3/2008. Learned counsel appearing for the petitioner submits that the learned Judge while dismissing the notice of motion has erred in holding that no exceptional circumstance was shown to condone the delay in filing the written statement. In support of his submissions he relied upon (Sambhaji & Ors.Vs.Gangabai & Ors.),2009(1) Bom.C.R. 81. 4] The learned counsel appearing for the respondents has filed his say opposing this petition. The learned counsel has submitted that the stand taken by the petitioner is false and there is nothing to show that the petitioner has changed the advocate and the time was consumed in settling and resettling of the written statement. It is further submitted that the written statement was not filed within stipulated 3 period of 90 days and ,therefore,this petition be dismissed. 5] In the present case on 14/2/2008 the learned Judge has passed the order of ‘no W.S.’ and after one month the defendant has moved the Court with prayer that his written statement be accepted. Non availability or preoccupation of the lawyer having busy schedule cannot be said as an exceptional circumstances as stated by the learned Judge. However, it is also to be borne in mind that Order 8 Rule 1 is a procedural rule and not substantial law. Further the time gap between ‘no W.S.’ order and the filing of Notice of Motion seeking prayer that the W.S.be taken on record is short period of one month.The ratio (Sambhaji & Ors.Vs.Gangabai & Ors.), 2009(1) Bom.C.R. 81 is relied upon by this Court which reads as follows. “ No party should ordinarily be denied opportunity of participating in process of justice. Rules need not be interpreted in a way to leave Court helpless in extraordinary situations to meet ends of justice. Merely because a provision (like Order 8 Rule 1) is couched in a negative language implying mandatory character,same is not without exceptions and courts have to keep entire context in view and hold same to be directing though worded in negative form.’’ 4 6] In view of this ruling of the Honourable Supreme Court the Petition is allowed with cost of Rs.1,000/- to be paid by the petitioner to the respondents or to be deposited in the Trial Court within two weeks from today. (Mrs.Mridula Bhatkar,J.) srs