1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2638 OF 2009 Rashid bi Latif Deshpande ...Petitioner Versus Natthu Nimba Nannaware (deceased) Through his Legal representatives ...Respondents ..... Mr. Girish Rane, advocate for the petitioner Mr. S.B. Yawalkar, advocate for respondent Nos. 1 to 3. ..... CORAM: S. S. SHINDE, J. DATED: 1ST SEPTEMBER, 2009 PER COURT:- 1 This writ petition is filed challenging the judgment and order dated 22.9.2008 passed below Exh.77 in R.C.S. No. 19 of 2008 by the learned C.J.J.D. Dharangaon. The learned Judge, by impugned order has set aside the No W.S. order by imposing costs of Rs.2000/- on the applicant therein. 2 Learned counsel appearing for the petitioner submitted that No W.S. order came to be set aside at the stage when the evidence of the plaintiff is over and since 1999, the defendant had not filed their written 2 statement. It is further submitted that the conduct of the defendant was careless and therefore, the court should not have set aside the No W.S. order. Learned counsel submitted that the reasons, which were given in the application for setting aside the No W.S. order cannot be an exceptional reason, so as to set aside the No W.S. order. Learned counsel appearing for the petitioner invited my attention to the grounds taken in the petition and submitted that the impugned order deserves to be set aside. 3 Learned counsel for the respondent relying on the affidavit in reply submitted that the trial court, taking into consideration the reasons given in the application, has set aside the No W.S. order and said order will not cause any prejudice or irreparable loss to the petitioner. He further submitted that the predecessor of the respondent late Nathu Nimba Nannaware has filed his written statement at Exh.17, which is annexed at Exh."B” to this petition and now the respondents have adopted the said written statement. Therefore, learned counsel would submit that already written statement filed by the predecessor of respondent herein is on record and same will not cause any prejudice to the petitioner and therefore, the trial court has rightly set aside No W.S. order and the respondents are directed to pay Rs.2000/- towards the costs. 3 4 After hearing counsel appearing for the petitioner and the respondents Nos.1 and 3 and on perusal of the judgment and order impugned in the petition, passed by the trial court, I am of the considered view that in the facts of this case, the trial court has rightly set aside the No W.S. order. The counsel for the respondent is right in contending that the predecessor of the respondent has already filed written statement on record and the respondents herein have adopted the said written statement and nothing new has been brought on record and the same will not prejudice the interest of the petitioners. This court as well as the Apex Court time and again has reiterated that the provisions of Order VIII Rule 1 are not mandatory in nature and same are directory. On careful perusal of the reasons recorded by the trial court, it clearly appears that the order passed by the lower court is in the interest of justice. It is not in dispute that the respondents have adopted same written statement which is filed by the predecessor. In para 2 of the affidavit in reply, the respondents have clearly stated that the respondents submitted that in this suit the predecessor of the respondent late Natthu Nimba Nannaware has filed his written statement at Exh.17, which is annexed at Exh."B" to this petition. It is pertinent to note that this respondent has adopted the said written statement. 5 Viewed from any angle, the impugned order does not call for 4 any interference in the extra ordinary writ jurisdiction under Article 227 of the Constitution of India. Hence, writ petition is dismissed. Interim relief if any, stands vacated. Civil application if any, stands disposed of. (S.S. SHINDE, J.) rlj/