1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4061 OF 2009 Namdeo Tukaram Khot ........ Petitioner versus Daulu Joti Chincholkar & ors. ........Respondent. Mr. Pratap Patil adv. for the Petitioner Mr. S.A. Pawar adv. for the Respondents 1 to 3. CORAM: A. P DESHPANDE, J. DATED : 06th November, 2009. P. C.: 1. Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing. 2. At the request of the learned counsel for the petitioner, respondent no.4 stands deleted. Heard the learned counsel for the petitioner and the learned counsel for the contesting respondents. 3. The dispute in this petition arises in the following facts:- The respondent no.1 to 3 are original plaintiffs who instituted a suit against the present petitioner and respondent no.4 herein (ori. Defendant no.2) for injunction seeking to restrain the defendants from alienating the suit property which is agricultural land and further claiming a right of pre-emption in purchase of the suit property in the event if the defendants sell the same. The 2 present petitioner was served with suit summons by affixing the same on the residential premises. The petitioner had put in his appearance, however did not file the written statement within the stipulated period of 30 or 90 days as contemplated by Order 8 Rule 1. At a later point of time, the petitioner and the respondent no.4 herein moved an application seeking permission to file written statement on record and along with the said application did also tender the written statement on record and prayed for its acceptance. The trial court did not consider the application in the light of the reasons stated therein and has proceeded to reject the same by cryptic order possibly under an impression that the court ceases to have jurisdiction to permit filing of written statement after expiry of the period of 90 days. Perusal of the impugned order reveals that the trial court proceeded on an assumption that Order 8 Rule 1 is mandatory in nature and the same in turn robs of the court with jurisdiction to permit filing of written statement beyond the period of 90 days. The learned counsel for the petitioner has placed reliance on a judgment of the Supreme Court which holds that Order 8 Rule 1 is directory in nature and in an appropriate case the courts posses jurisdiction to permit filing of written statement even when it is tendered beyond the period of 90 days. The judgment in case of Kailash Vs. Nanhku reported in 2005(2) Mh.L.J. Page 775 clinches the issue involved in the present petition. The learned counsel for the respondent submits that as the trial court has not addressed itself to the sufficiency of the reason spelt out in the application moved by the 3 present petitioner seeking permission to file written statement, it would be in furtherance of cause of justice to set aside the order and remand the matter back to the trial court for a fresh decision on the application filed by the petitioner at Exh.19. The learned counsel for the petitioner has no objection to follow this course. Having regard to the fact that the trial court has declined to exercise the jurisdiction vested in it by law, this court is constrained to interfere with the impugned order. The impugned order dated 17-3-2009 is thus quashed and set aside. The application at Exh.19 stands restored to file. The trial court is directed to afford an opportunity of hearing of the parties concerned, and thereafter pass appropriate order in accordance with the law, disposing of application at Exh.19. Rule made absolute in the above terms. (A. P. Deshpande, J.)