**1** IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2312/2009 Mahanagar Telephone Nigam Ltd.. ....Petitioner -VERSUS- M/s Lavina Estate Pvt.Ltd.. ......Respondent ........... Mr.V.D.Shukla i/b M/s Shukla & Associates, for the Petitioner. Mr.R.G.Singh, Advocate for the Respondent. ........... CORAM : A.S. OKA, J. Dated : 14th October, 2009. P.C. :- 1 I have heard the submissions of the learned counsel appearing for the parties on the earlier date. 2 This Writ Petition under Article 227 of the Constitution of India is filed by the original Defendant-Mahanagar Telephone Nigam Limited. The Respondent is the original Plaintiff. The challenge in this Writ Petition is to an order dated 24th April, 2008 by which the prayer made by the Petitioner for taking the Written Statement on record has been rejected by the learned Trial Judge. 3 The application was moved by the Petitioner on 23rd January, 2008 for condoning the delay in filing the Written Statement. In the application it is stated that the Petitioner was served with the suit summons on 07th November, 2006. It is pointed out that an application for interim relief was taken out by the Respondent and the said **2** application was contested by the Petitioner. It is stated that initially the suit was assigned to a panel Advocate. As the said Advocate did not perform his duty, the matter was entrusted to another panel Advocate and therefore, there was a delay in filing the Written Statement. The said application was contested by the Respondent by filing a reply. It was contended in the reply that in fact the writ of summons was served on the Petitioner on 17th October, 2006 and the Written Statement was not filed within 30 days as provided by Rule 1 of Order VIII of the Code of Civil Procedure, 1908. It is pointed out that on 14th September, 2007 the arguments on interim application were heard and in fact a reply to the said application was filed way back in April, 2007. The Respondent has set out in the reply as to how the matter proceeded and as to how there is an unexplained delay. 4 The learned counsel appearing for the Petitioner submitted that the fact that the Petitioner filed a reply to the application for interim relief shows that the Petitioner was diligently contesting the suit. He submitted that the reasons set out in the application have been completely ignored by the Trial Court. 5 The learned counsel appearing for the Respondent has submitted that there is no explanation for a long delay of more than one year in filing the written statement. He submitted that even the ground of change of an Advocate pleaded by the Petitioner has no merit as there is no explanation as to why newly appointed Advocate could not file the Written Statement from February, 2007 onwards. He submitted that no interference can be made with the discretionary order passed by the Trial Court. 6 I have carefully considered the submissions. It must be stated here that the suit filed by the Respondent is for possession of the **3** premises where the Petitioner is running a Telephone Exchange. It is not in dispute that the application made by the Respondent at Exhibit-6 for grant of interim relief was contested by the Petitioner by filing a reply. In fact in the reply filed by the Respondent it is stated that the Petitioner filed the reply to the interim application on 27th April, 2007 and Written Argument was filed on 31st August, 2007. The application at Exhibit-6 for interim relief was disposed of on 17th September, 2007. 7 Thus, what is brought on record is that a reply filed to the interim application was taken on record. As stated earlier, the said reply was filed in April, 2007. As per the practice consistently followed in the Mofussil Courts, the Petitioner could have easily adopted the said reply as a written statement. In fact there is a decision of this Court holding that the reply can be adopted as a Written Statement and the date of filing the reply has to be taken as the date of filing the Written Statement. 8 In paragraph Nos.3 and 4 of the application filed by the Petitioner, it is stated thus:- “3. I say that earlier on our behalf the above matter was assigned to our panel Advocate M/s Gandhi & Associates who was supposed to look after the matter. I say that since the matter was not dealt by the same M/s Gandhi & Associates we were compelled to assign the matter to M/s Pradip Shukla & Company on 27.02.2007. 4. I say that due to the transfer of brief from one Advocate to another and in between the argument on the interim application i.e. Exhibit-6 was going on therefore the written statement could not be filed and therefore delay of 441 days which is required to be condoned.” 9 There are grounds in existence shown for explaining the **4** delay. Moreover, the Petitioner has set up a telephone exchange in the suit premises in respect of which a decree for possession is sought. 10 When a query was made on the last date as to whether the Petitioner was in position to pay exemplary costs, the learned counsel for the Petitioner showed willingness to pay the costs and this Court suggested that the amount can be quantified at Rs.50,000/-. 11 Accordingly, the learned counsel for the Petitioner stated today that a Demand Draft in the said amount drawn in favour of the Registrar of this Court is kept ready. 12 Considering the grounds in the application filed by the Petitioner and considering the fact that a reply to the application for interim relief was filed by the Petitioner way back in April, 2007, this was a case where the Trial Court ought to have permitted the Petitioner to file the Written Statement. The provision of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 is held as directory by the Apex Court. The petition must succeed on payment of costs which is quantified to Rs. 50,000/-. 13 Hence, I pass the following order:- (1) The impugned judgment and order dated 24th April, 2008 is quashed and set aside and the application at Exhibit-9 made by the Petitioner is allowed. (2) The Petitioner is directed to pay costs of Rs. 50,000/- to the Respondent. The Demand Draft kept ready by the Petitioner be deposited by the Petitioner with the Registry. The Respondent will be entitled to withdraw the said amount. (3) The Trial Court is directed to take on record the Written Statement of the Petitioner. It is obvious **5** that in view of filing of the Written Statement by the Petitioner, it will be open for the Respondent to lead further evidence and to file further affidavit in lieu of examination-in-chief of the witness whose affidavit is already filed. (4) The Petition is allowed in the above terms. [A.S. OKA, J.] kps