1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 959 OF 2007 APPEAL FROM ORDER NO. 959 OF 2007 APPEAL FROM ORDER NO. 959 OF 2007 WITH CIVIL APPLICATION NO.1317 OF 2007 IN NOTICE OF MOTION NO. 1463 OF 2007 IN S.C. SUIT NO. 1038 OF 2006 Smt. Mandakini Bhaskar Kadam & Ors. ..Appellants (Org. Defts.Nos.1 to 4) Versus Smt. Vandana Anil Kadam & Anr. ..Respondents Mr. Samir A. Vaidya, Advocate, for the appellant. Miss. Archana R. Shirsekar, Advocate, for Shri V.S.Paradkar, Advcoate for Respondents Nos. 1 & 2. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 14th January,2008. DATE: 14th January,2008. DATE: 14th January,2008. P.C. P.C. P.C. 2 1. Heard learned Counsel for the parties. 2. Suit No.1038 of 2006 was filed by respondent No.1 for partition. The present appellants are the original defendants Nos.1 to 4. They got certain adjournments, but did not file written statement. On 13.2.2007, an order was passed to proceed without written statement of defendants. The matter was adjourned to 7.4.2007. On that day, an application was made on behalf of defendants Nos. 1 to 4 seeking permission to file written statement, but they were asked to take out Notice of Motion for setting aside the order dated 13.2.2007. Therefore, they took out Notice of Motion No.1463 of 2007 seeking to set aside the order and to accept the written statement. That application was rejected. Therefore, the defendants Nos. 1 to 4 filed the present Appeal. 3. The record reveals that suit was filed in 2006 and Writ of Summons was served on the defendants on 1.8.2006. The matter was on board on 19.1.2007. On that day, on the request of the defendants, the matter was adjourned for filing written statement. On 13.2.2007, written statement was not filed and the order was passed to proceed without written statement. On the 3 next date, i.e. on 7.4.2007, the Advocate for defendants Nos. 1 to 4 moved an application for accepting the written statement, but it was not accepted. It appears that the dispute pertains to partition of the joint family property. 4. The learned Counsel for the defendant No.1-appellant No.1 contends that according to the defendant no.1, the property belongs to her husband and did not form the joint family property. She cannot take this plea unless the written statement is allowed and filed. 5. Taking into consideration the facts and circumstances, I find that the defendants should have been allowed to file written statement in the interest of justice. The trial Court failed to note that immediately on the next date after they had come to know that order was passed, defendants Nos. 1 to 4 had sought to file written statement and they also explained the difficulties due to which the written statement was not filed earlier. In such circumstances, there was no justification to refuse the prayer. It is now well-settled that period of limitation of 90 days for filing written statement is directory and not mandatory. 4 6. In view of the above circumstances, the Appeal is allowed. The impugned order is set aside. The Notice of Motion is allowed and the trial Court is hereby directed to accept the written statement if it is filed within one week from this date. 7. In view of the disposal of the Appeal, the Civil Application does not survive and stands disposed of. 8. Parties to act on the authenticated copy of this order. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)