:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.1856 OF 2008 PETITION NO.1856 OF 2008 PETITION NO.1856 OF 2008 Shrawan Kerappa Gawali ..Petitioner V/s Adam @ Issaq Gulab Tamboli ..Respondent Mr. P.G. Chavan for the petitioner Mr. Ashok B. Tajane for the respondent CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 2ND JUNE, 2008 : 2ND JUNE, 2008 : 2ND JUNE, 2008 P.C. 1. The affidavit-in-reply filed on behalf of the respondent is taken on record. 2. Heard. The Application of the petitioner to set aside the order dated 4-8-2007 of "no written statement" and to take the written statement on file after condoning the delay has been rejected by the Trial Court on the ground that the Application is not signed by the petitioner and there is no supporting affidavit of the petitioner. 3. It is the case of the petitioner that the Application has been signed by the advocate on record and that merely on this technical ground the :2: Application ought not to have been rejected. The learned Counsel for the petitioner has relied upon the case of Shaikh Salim Haji Abdul Khayumsab V. Shaikh Salim Haji Abdul Khayumsab V. Shaikh Salim Haji Abdul Khayumsab V. Kumar Kumar Kumar reported in 2005 DGL (Soft) 577 and as also the case of R.N. Jadi & Brothers R.N. Jadi & Brothers R.N. Jadi & Brothers reported in 2007 DGLS (Soft) 747. Placing the reliance on the above judgments the learned Counsel for the petitioner urged that the Court can take the written statement on record even beyond 90 days and that technicalities should not come in the way of advancing justice and the Court is required to take liberal view in the matters of procedure. 4. The learned Counsel for the respondent on the other hand, has relied upon the case of Chintaman Chintaman Chintaman Sukhdeo Sukhdeo Sukhdeo Kaklij & others V.s Shivaji Bhausaheb Gadhe & Kaklij & others V.s Shivaji Bhausaheb Gadhe & Kaklij & others V.s Shivaji Bhausaheb Gadhe & others others others reported in 2004(5) Bom. C.R. 573 and submitted that no exceptional and special circumstances were made out to condone the delay. He further submitted that no affidavit in support of the petitioner filed in trial Court and the trial Court has rightly rejected the application of the petitioner. :3: 5. I have perused the impugned order and the material on record including the rulings cited by the learned counsel for the parties. There is no dispute that the Application before the trial Court was not signed by the petitioner. The Application which is presented, annexing therewith the written statement, states that certain settlement talks were going on between the parties and therefore, the written statement was not be filed within statutory period. It is taken note of that the writ of summons was served on 19-6-2007; the impugned order was passed on 4-8-2007; and the application to set aside the impugned order is dated 18-9-2007. Thus the Application is filed on the next day after the extended period of 90 days as provided under order 8 rule 1 CPC has expired. 6. It was not for the advocate to make any Application and the parties are required to come forward and state on affidavit why the written statement could not be filed within the period of 30 days or the extended period of 90 days. However, considering the facts and circumstances of the case, in my view, interest of justice would be met, if the :4: petitioner is allowed to make a fresh Application before the trial Court for condonation of delay in filing the written statement. The petitioner is accordingly granted liberty to make a fresh Application before the Trial Court for condonation of delay in filing the written statement, which should be considered by the Trial Court on its own merits. The Trial Court would however consider the period of pendency of this Writ Petition in arriving at its decision. The learned Counsel for the petitioner states that the Application before the Trial Court would be made within two weeks. If the application is not made within two weeks the impugned order shall stand. 7. The impugned order is set aside with liberty as aforestated and writ petition is disposed of in above terms. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)