1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 7169 OF 2009 WITH CIVIL APPLICATION NO.2911 OF 2009 IN WRIT PETITION NO. 7169 OF 2009 Municipal Corporation of Greater Mumbai. .. Petitioner Vs Parvez Mohammed Hussain Ghaswala & Anr. .. Respondents -- Shri M.M. Malvankar i/by V.K. Khatu for the Petitioner. Shri Kunal Cheema i/by Reena Salunkhe for Respondent No.1. Shri Luann Crasto i/by M/s. K. Ashar & Co. for Respondent No.2. -- CORAM : A.S. OKA, J DATE : 29TH JANUARY, 2010. P.C. 1. Heard learned counsel appearing for the Petitioner. Learned counsel appearing for the 1st Respondent, who is the original Plaintiff. Considering the narrow controversy involved in the Petition, the same is taken up for final disposal at the admission stage. 2. On 1st August, 2008, when the suit filed by the 1st Respondent was kept on board for settlement of issues, along with an application, a Written Statement was tendered by the Petitioner/Corporation. It appears that on 12th September, 2008, the said application made by the Petitioner was rejected by the trial Court. While rejecting the said application, the trial Court observed that there was a delay of 3 and ½ years in filing written statement and the said delay has not been explained. Therefore, another 2 application was made by the Petitioner in March, 2009. In the said application, a prayer was made for taking the written statement on record and for recalling the earlier order. In fact, it is stated in the said application that a writ of summons was not served to the Petitioner. Therefore, a prayer is made that if the Court was not inclined to grant permission to file the written statement, the suit may be adjourned for dismissal as against the Petitioner on account of failure of the 1st Respondent to serve the suit summons to the Petitioner. Even the said application has been rejected by the trial Court and, therefore, the present Writ Petition. 3. After having heard the learned counsel appearing for the parties, I find that a case was made out for taking written statement of the Petitioner on record. In the order dated 12th September, 2008, the trial Court has merely observed that there is a delay of 3 and ½ years in filing the written statement. In the subsequent application, the Petitioner came out with a case that even the writ of summons was not served to the Petitioner and, therefore, the occasion for filing written statement did not arise. There is nothing on record to show that the writ of summons was served to the Petitioner. The learned counsel appearing for the 1st Respondent is unable to place any material in that behalf. The condition precedent for applicability of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 is the service of writ summons. In the circumstances, the trial Court ought to have taken written statement filed by the Petitioner on record. The learned counsel appearing for the Petitioner states that the written statement is tendered on record along with the application dated 1st August, 2008. 3 4. Hence, I pass following order: (a) The impugned order is quashed and set aside and the Written Statement tendered by the Petitioner be taken on record. (b) The Petition is allowed in above terms. (c) In view of disposal of the Writ Petition, the Civil Application No.2911 of 2009 does not survive and stands disposed of accordingly. JUDGE