1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 422 OF 2009 Kashinath Arjun Ohol ...Petitioner Versus Shri S.H. Khatod and Sons and another ...Respondents ..... Mr. S.T. Shelke, advocate for the petitioner Mr. M.N. Navandar, advocate for respondent No. 1 Mr. S.S. Kulkarni, Advocate for respondent No.2 ..... CORAM: S. S. SHINDE, J. DATED: 27TH AUGUST, 2009 PER COURT:- 1 This petition is filed challenging the order dated 29.9.2008 passed by the learned Joint C.J.J.D. Shrirampur, District Ahmednagar below Exh.21 in R.C.S. No. 267 of 2005. By the impugned order the trial court set aside No W.S. and allowed the respondents to file written statement. 2 Learned counsel appearing for the petitioner submitted that in view of the provisions of Order VIII Rule 1, the trial court was not 2 justified in setting aside the No W.S. order in absence of any exceptional circumstances or in absence of sufficient cause disclosed in the application for setting aside the No W.S. order. According to the learned counsel, the respondents appeared in the matter on 27.1.2006 and thereafter sought two adjournments on 17.2.2006 and on 4.3.2006 for filing written statement. No W.S. order was passed on 20.2.2007 and thereafter the application was filed by the respondents for setting aside the No W.S. order. According to learned counsel, no exceptional circumstances or sufficient cause has been disclosed in the application for setting aside the No W.S. order and therefore, it was not permissible for the trial court to allow the application of the respondent. Learned counsel appearing for the petitioner has placed reliance on the judgments of the Hon'ble Supreme court in the case of Zolba Vs. Keshao and others reported in 2008 AIR SCW 2739 and has submitted that only in exceptional circumstances delay can be condoned. Learned counsel further invited my attention to the contents of the application filed for setting aside the No W.S. order and submitted that without mentioning the name of power of attorney or without producing the medical certificate on record in respect of contention of the applicant that due to ill health of the power of attorney, the application was filed. Therefore, counsel for the petitioner prayed that 3 the impugned order deserves to be quashed and set aside. 3 The counsel appearing for the respective respondents have vehemently opposed the writ petition by placing reliance on the averments in their replies and submitted that the provisions of Order VIII Rule 1 are not mandatory in nature but are directory. In the instant case, looking to the facts disclosed in the application for setting aside No W.S. Order, the trial court has allowed the application. According to the learned counsel, the reasons which were disclosed in the application are exceptional reasons. The power of attorney holder of the applicant-respondent was suffering from some ailment, therefore, he could not file written statement within time. The application also discloses that earlier advocate did not inform the respondents about development in the matter and further it is submitted that the delay in filing written statement was not intentional or no malafides can be attributed to the respondents. Learned counsel further invited my attention to the various pronouncements of the Hon'ble Supreme Court reported in AIR 2005 SC 3353, 2008 (11) SCC 769 and 2007 (6) SCC 420 and has submitted that in all these judgments the Hon'ble Supreme court has interpreted the provisions of Order VIII Rule 1 of C.P.C. holding that the said provisions are not mandatory and are directory in nature. Therefore, learned counsel submitted that now already written statement is taken on record and no purpose would be served by setting aside the impugned order, thus, they prayed for 4 dismissal of writ petition. 4 After hearing counsel for the respective parties and after perusal of the contents of the petition and annexures thereto, I am of the considered view that the trial court, in the interest of justice, by reasoned order has set aside No W.S. order and allowed the respondents to file written statement. On perusal of the reasons recorded by the trial court, it clearly appears that court has considered the provisions of Order VIII Rule 1 and also placed reliance on the reported judgment in the case of Salem Advocate Bar Association Tamilnadu Vs. Union of India, reported in AIR 2005 SC 3353. The learned Judge has also recorded the reasons in para 5 that the power of attorney of defendant No.1, who appeared on behalf of the defendants in the suit, was unable to file written statement due to ill health. The person having knowledge of filing of suit, did not intimate the defendant No.1 who permanently is now resident of Mumbai and due to said communication gap and ill health of formal power of attorney, written statement could not be filed within stipulated period. Therefore, learned Judge has set aside the No W.S. order. 5 On perusal of the reasons disclosed in the application for setting aside the No W.S. order, the respondents had made out a case before the trial court and the trial court has passed the impugned order, which is in the interest of justice holding that the provisions of Order VIII Rule 5 1 are directory in nature and not mandatory. 6. In the result, the reasons/cause shown in the application for setting aside No W.S. order appears to be sufficient cause and the learned Judge has rightly set aside the No W.S. order in the interest of justice and therefore, in writ jurisdiction, no interference is called for. Writ petition is dismissed. Interim relief, if any, stands vacated. *****