1 ao1244.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1244 OF 2009 WITH CIVIL APPLICATION NO. 1557 OF 2009 Kiran K. Patel ... Appellant Vs. Sureshpuri Lunpuri Goswami & others ... Respondents ...... Mr. Simil Purohit a/w Ms Sonal Awasthi i/by M/s Vinod Mistry for the Appellant. Mr. D.R. Singh I/by R.B. Singh for Respondent Nos. 1 to 3. Smt. K.K. Soraan for Respondent No.5 MCGM ...... CORAM : J.H. BHATIA, J. DATE : 25TH OCTOBER, 2010. P. C. 1. Heard the learned counsel for the parties. The respondents filed L.C. suit No. 266 of 2004 seeking permanent alternative accommodation in view of their respective suit structures, as the developer i.e. respondent no.1 was developing the scheme for rehabilitation for slum dwellers on the land city survey No. 1065 Marathe colony road Dahisar. As per the record on 29-8-2005, the defendant No.1 was served with suit summons. He sought to file written statement on 30-11-2007 i.e about 2 years and 3 2 ao1244.09.sxw months after service. The notice of motion taken out by the defendant No. 1 to accept the written statement was rejected by the trial Court on the ground that inspite of service he had not field written statement within 90 days as required by law and the delay of about 2 years is not properly explained. That order is challenged by the appellant. 2 The record reveals that the defendant No.1 was served on 29-8-2005 with the suit summons with direction to appears on 27-9.2005 He appeared through the advocate. Thereafter on every day he or his advocate was present but no request was made on behalf of defendant No.1 to file written statement. The learned Counsel for the defendant- appellant contented that the suit filed by the plaintiff was dismissed in default on 13-6-2007. However, on the same day it was restored to the file. The learned Counsel for the appellants contends that defendant No.1 was served with a notice for restoration some time in August, 2007 and in the same month affidavit was sworn in but it was actually sought to be filed on 3-11-2005. The trial Court noted that no explanation has been given in the affidavit for the delay from 29-8-2005 to 3-11-2007. Order VIII Rule 1, as amended with effect from 1-7-2002, mandates that the defendant shall file written statement within 30 days but if he fails to file written statement within that time, he shall be allowed to file the same on such other day, as may be specified by the Court for the reasons to be 3 ao1244.09.sxw recorded in writing, but which shall not be later than 90 days from the date of service of summons. If due to the circumstances, beyond the control of defendant, written statement is not filed, the Court may accept it in the interest of justice, but in the present case no explanation is given for the delay as noted by the trial Court. Therefore, I do not see any reason to interfere in the impugned order. 3. The learned Counsel for the appellant points out that the Additional collector of encroachment, who is competent authority, had passed order on 21-4-2005 holding that huts of the plaintiff-respondent are situated outside the limit of the scheme being implemented on the property survey No.1065 of village Dahisar. It appears that the said order was challenged by the plaintiff on 6-12-2005 by preferring 3 separate appeals before SRA and those appeals are not disposed of by SRA. Pending of these appeals could not be a ground for not filing written statement for more than 2 years. 4. For the aforesaid reasons, the appeal and the application stand dismissed. J. H. BHATIA, J