1 WP3214.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3214 OF 2011 Sawla Valha Gaikwad, Age: 85 years, Occ: Nil, R/o. Rehukari, Tq. Karjat, District Ahmednagar & Ors. ...PETITIONERS VERSUS Rakhmabai Bapu Sonwane, Age: 76 years, Occ: Household., R/o. Vahali, Tq. Patoda, District Beed. ...RESPONDENT ... Mr. S.T. Shelke, Advocate for petitioners. ... CORAM: S.S. SHINDE, J. DATE : 21ST JULY, 2011 PER COURT : Though the respondent served, none appears for her. 2. This Writ Petition takes exception to the order dated 11-10-2010 passed by the Civil Judge, Junior Division, Karjat, District Ahmednagar below 2 WP3214.11 Exhibit-24 in Regular Civil Suit No. 42 of 2009. Initially, when this matter was heard for admission on 29-04-2011, this Court issued notice returnable in six weeks. Ad interim relief in terms of prayer clause (C) was granted. 3. Learned Counsel appearing for the petitioners submits that in pursuant to the summons, the petitioners appeared before the trial Court On 13-04-2009. However, they could not file Written Statement because petitioner No.1 was old aged person of 85 years and was suffering from severe diabetic and petitioner Nos. 2 and 3 were out of station for livelihood. On 20-07-2009 "No W.S. order" came to be passed. Thereafter, on 06-09-2010 the application below Exhibit-24 was filed by the present petitioners for recalling "No W.S. order" However, said application came to be rejected by the trial Court on 11-10-2010. 4. Learned Counsel appearing for the petitioners submits that, the procedure as laid 3 WP3214.11 down in Order 8 Rule 1 of the Code of Civil Procedure is directory in nature and not mandatory. He invited my attention to the Bombay Amendment by which 90 days outer limit has been taken away for allowing the parties to file Written Statement. Therefore, according to learned Counsel for the petitioners looking to the facts of the case that the petitioner is 85 of years old and he was suffering from severe ailments, trial Court should have allowed the application filed on 06-09-2010 thereby recalling "No W.S. Order" and allowing the petitioners to file Written Statement. . Learned Counsel for the petitioners submits that the observation by the trial Court that, now the matter is posted for final arguments is not the correct position. Original defendant No. 3 died during pendency of the suit and L.Rs. have been brought on record by the plaintiff. They have filed Written Statement and now, the matter is posted for framing of issues. 4 WP3214.11 Therefore, learned Counsel for the petitioners submits that, this petition may be allowed by setting aside the impugned order. 5. I have given due consideration to the submission of the Counsel for the petitioners. Though the respondent is served, none appears for her. It is well settled that provisions of Order 8 Rule 1 of the Code of Civil Procedure are directory in nature and not mandatory. The reason which was given in the application for recalling the order was that, petitioner No. 1 is of 85 years old and petitioner Nos. 2 and 3 are of 65 and 60 years old respectively. Irrespective of age, in my opinion, for proper adjudication of the issue involved and to put an end of controversy, the trial Court should have accepted the Written Statement by recalling the order dated 20-07-2009 whereby "No W.S. order" was passed. 6. However, in the facts of this case, it was argued on behalf of the plaintiff before the 5 WP3214.11 trial Court that her age is also 75 years and she has to travel to prosecute the case from the distance of 70 to 75 Kms., without having any source of income. Therefore, definitely some prejudice will be caused to the plaintiff, if the writ petition is allowed. To meet the ends of justice, it would be just and proper to direct the petitioners to deposit the costs of Rs.5000/- (Rs. Five thousand only) within six weeks from today, in the trial Court. 7. Taking over all view of the matter, the impugned order is quashed and set aside. Petitioner Nos. 1 to 3 will be entitled to file Written Statement subject to deposit costs of Rs. 5000/- (Rs. Five thousand only) within six weeks from today, in the Court of the Civil Judge, Junior Division, Karjat, District Ahmednagar. . It is made clear that, this Writ Petition is allowed and the petitioners are permitted to file their Written Statement subject to deposit of 6 WP3214.11 costs of Rs.5000/- (Rs. Five Thousand only) in the trial Court within six weeks from today. Upon depositing such costs, original plaintiff - respondent herein will be entitled to withdraw the said amount, even without any formal application. Concerned Judge to see that as soon as the costs of Rs.5000/- (Rs. Five thousand only) is deposited, same should be handed over to the original plaintiff - respondent herein. 8. Writ Petition is allowed to the above extent and same stands disposed of. [S.S. SHINDE, J.] sut/JUL11