1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5329 OF 2007 Vitthal S/o Ziparu Patil ... Petitioner. Versus Sudam Shivram Thakare and others ... Respondents. ... Shri A.N.Gaddime, advocate for Mr.N.L.Choudhari, advocate for the petitioner. Respondent No.1 served. ... CORAM : V.R.KINGAONKAR,J. Date : 25.06.2009. PER COURT 1. By this petition, the petitioner challenges order rendered by the learned 2nd Joint Civil Judge (J.D.), Dhule on his application (Exh.15), whereby his request to allow written statement to be placed on record 2 came to be rejected. 2. The petitioner is original defendant No.2 in the suit (RCS No.263/2006) filed by the Respondent No.1 for declaration and perpetual injunction. The petitioner appeared before the trial Court on 12.1.2007 and gave application seeking time for filing of written statement. The time was granted. He could not file written statement within a period of 90 (ninety) days as contemplated U/o VIII Rule 1 of the C.P.C. The trial Court, therefore, directed to proceed against him by passing "No Written Statement" order. He subsequently, filed application (Exh. 15) on 7.6.2007 and urged to grant him to file the written statement. He submitted that he was unable to receive copies of important documents and certain necessary information. The learned Civil Judge rejected his application on the ground that it was filed after 90 (ninety) days and there was no exceptional ground made out by the petitioner. 3. Heard learned advocate for the petitioner. Though served, Respondent No.1 3 (plaintiff) remained absent. The other Respondents are formal parties. 4. The provision of Order VIII Rule 1 of the C.P.C. is directory in nature. This Court in "Mangala W/o Pradeep Lambade Vs.Madhubala d/o Madhukar Mishra" 2009 (1) Mh.L.J.322, took survey of catena of judgments and held that the rule is directory in nature. The right of the defendant to file written statement should not be taken away without there being exceptional reason which indicates his total apathy or malafides. In the present case, the petitioner was supposed to file the written statement on 12.4.2007. He gave plausible explanation for not filing the written statement within the stipulated period. There was no significant delay in filing of the subsequent application (Exh.15). His application was supported by the affidavit (Exh.16) as is evident from the Roznama of the suit. It can not be overlooked that during period of May 2009, the business of the Civil Court was closed. What appears from the record is that on the opening day of the Civil Court the written statement was 4 presented alongwith the application (Exh.15). Considering the diligence of the petitioner and the reasons stated in the application and the intervening summer vacation, few days delay committed by him from 12.4.2007 till commencement of the summer vacation in the first week of May 2007, can not be regarded as excessive. In this view of the matter, the impugned order is quite perverse and arbitrary. 5. In the result, the petition is allowed. The impugned order is quashed. The petitioner's application (Exh.15) be deemed as allowed and his written statement be taken on record by the trial Court. (V.R.KINGAONKAR,J.) asp/office/wp532907