IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5644 OF 2009 Sakharam Dnyanu Desai. .. Petitioner Vs Smt. Parvati Krushna @ Kisan Desai & Ors. .. Respondents ­­ Shri Vijay Gharat for the Petitioner. Shri Mishra i/by Shri A.M. Saraogi for Respondent Nos.1, 2, 3, 8 and 9. ­­ CORAM : A.S.OKA, J. DATE : 24TH FEBRUARY, 2010 P.C: . Considering the narrow controversy involved in this Writ Petition, the same is taken up for final disposal at the admission stage. 2. The present Petitioner is the 1st Defendant in a suit filed by the 1st Respondent. On 10th January, 2005, an order was passed by the Trial Court directing that the suit will proceed without a Written Statement of the Petitioner. Thereafter, an application was made by the Petitioner on 3rd September, 2007 for setting aside the said order dated 10th January, 2005 whereby directing that the suit will proceed without the Written Statement of the Petitioner. The Written Statement was tendered along with the application dated 3rd September, 2007. By an order dated 20th September, 2008, the said application was rejected. Thereafter, an application was made at Exhibit­26 for review of the earlier order. By an order dated 21st February 2009, the application for review has been rejected. The said order is subject matter of challenge in the Writ Petition under Article 227 of the Constitution of India. 3. The learned counsel appearing for the Petitioner submitted that adequate explanation for delay in filing the Written Statement was given by the Petitioner in the original application as well as in the application for review. He submitted that there was no reply filed by the 1st Respondent to the earlier application filed on 3rd September, 2007. He submitted that exceptional circumstances were set out by the Petitioner. The learned counsel appearing for the 1st Respondent supported the impugned order by contending that the petitioner was represented by an Advocate and from time to time, the suit was adjourned to enable the Petitioner to file Written Statement. He submitted that there is an inordinate delay in filing the Written Statement. 4. I have given careful consideration to the submissions. The application at Exhibit­23 was rejected by the Trial Court when the Advocate for the Petitioner was absent. In fact, even the Advocate for the 1st Respondent was absent and no reply to the said application was filed by the 1st Respondent. In the application for review, it was pointed out that the Petitioner was confined to bed for the last 3 years and his kidney has failed. It must be stated that the application for review was filed on the same day on which the application at Exhibit – 23 was rejected. In the application for review, it was pointed out that in the morning session, the Advocate for the Petitioner could not appear in the Court and could not file documents in support of the case made out by the Petitioner in Exhibit – 23 that he was suffering from the serious ailments. 5. As the application for review was made on the same day, the Trial Court ought to have restored the application at Exhibit­23 and ought to have heard the said application afresh. While rejecting the application for review, the learned Trial Judge observed that under Rule 1 of Order VIII of the Code of Civil Procedure, 1908, the Court is powerless to accept the Written Statement after 90 days from the date of service of summons. The said approach was completely erroneous. The Apex Court has held that the amended provision of Rule 1 of Order VIII of the said Code is directory and in a given case, the Court has power to extend the time for filing a Written Statement for the reasons recorded. 6. In normal course, this Court would have set aside the order dated 21st February, 2009 and by allowing the review application, would have directed the Trial Court to re­hear the application at Exhibit­23. If such course is adopted, the suit which is of the year 2004 will be delayed further. Considering the reasons set out in the application at Exhibit­26, this is a case where existence of extra­ordinary circumstances were brought on record by the Petitioner. The prejudice which may be caused to the 1st Respondent can be compensated by ordering payment of costs. The amount of costs is quantified at Rs.5,000/­. 7. Hence, I pass the following order. (a) The impugned order dated 21st February, 2009 is quashed and set aside and the Applications at Exhibits 23 and 26 are hereby allowed subject to the Petitioner paying costs of Rs.5,000/­ to the 1st Respondent within a period of eight weeks from today. (b) Deposit of the amount of costs with the Trial Court will be treated as sufficient compliance. (c) Payment of costs will be condition precedent. (d) The Petition is allowed in above terms. (A.S.OKA, J) ash