1 wp 5460.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5460 OF 2011 1. Arjun S/o Maliba Sawant, Age : 32 Years, Occu. : Agril., R/o Manjrath, Tq. Pathri, Dist. Parbhani. 2. Meera W/o Navnath Bedre, Age : 27 Years, Occu. : Household, R/o Chhatraborgaon, Tq. Majalgaon, Dist. Beed. 3. Kalpana W/o Pundlik Kharat, Age : 25 Years, Occu. : Household, R/o Domalgaon, Tq. Ambad, Dist. Jalna. .. .. Petitioners Versus 1. Sangeeta W/o Arjun Sawant, Age : 40 Years, Occu. : Household, R/o Sonnathadi, Tq. Majalgaon, Dist. Beed. 2. Abhishek S/o Arjun Sawant, Age : 4 Years, U/G of his mother, Sangeeta W/o Arjun Sawant, Age : 40 Years, Occu. : Household, R/o Sonnathadi, Tq. Majalgaon, Dist. Beed. 2 wp 5460.11 3. Maliba S/o Marotirao Sawant, Age : Major, Occu. : Agril., 4. Gangubai W/o Maliba Sawant, Age : Major, Occu. : Household, 5. Ramdas S/o Maliba Sawant, Age : Major, Occu. : Agril. & Student, The respondent Nos. 3 to 5 all R/o Manjrath, Tq. Pathri, Dist. Parbhani. .. .. Respondents Shri S. J. Salunke, Advocate for Petitioners. Shri V. H. Salunke, Advocate for Respondent Nos. 1 and 2. The respondent Nos. 3 to 5 deleted. CORAM : S. V. GANGAPURWALA, J. DATE : 18TH OCTOBER, 2011. ORAL JUDGMENT : . Shri Salunke, the learned counsel for petitioners submits that, the respondent Nos. 3 to 5 are not necessary parties for the present dispute and seeks leave to delete the respondent Nos. 3 to 5. The respondent Nos. 3 to 5 are deleted at the risk of petitioners. 02. Rule. Rule returnable forthwith. With the consent of 3 wp 5460.11 parties taken up for final hearing. 3. The present respondent Nos. 1 and 2 have filed a suit for permanent alimony and partition. The petitioners were served with the summons on 15th February 2011. As the written statement was not filed, the Court on 18.06.2011 passed an order of no written statement. Thereafter, on 21.06.2011 the petitioners filed an application for setting aside no written statement order along with the written statement. The said application is rejected. Aggrieved thereby the present petition is filed. 4. Shri Salunke, the learned counsel for respondent Nos. 1 and 2 vehemently opposes the petition and submits that the Trial Court has properly considered all the circumstances and has rightly rejected the application filed by the petitioners. No sufficient reasons have been stated and only vague avernments were made without any proof of the alleged ailments. The learned counsel submits that as per Order VIII Rule 1, the written statement has to be filed within a period of 90 days. In the present case, the same was filed after 125 days. The learned counsel relies on the judgment of the Apex Court in a case of 4 wp 5460.11 Salem Advocates Bar Association Vs. Union of India reported in 2005 AIR SCW 3827. 5. In the judgment of the Salem Advocates Bar Association referred supra, the Apex Court has held that the provisions of Order VIII Rule 1 are directory in nature and the Court has got power to accept the written statement even after the 90 days. The only caution that has been laid down by the Apex Court is that the time can be extended only in the exceptional cases. 6. In the present matter, the petitioners have given the reasons. The delay is also not abnormal. The Trial Court has taken a very hyper technical approach in rejecting the application. Procedural law will have to be construed in a manner which would advance the cause of substantial justice. The dispute pertains to an immovable property. It would be in the fitness of things to offer an opportunity to the petitioners to contest the suit, taking into account the reasons stated in the application. At the same time the petitioners also deserve to be mulct with the cost. 5 wp 5460.11 7. In the result the writ petition is allowed. The impugned order is quashed and set aside and Rule is made absolute in terms of prayer Clauses "B" and "C" on condition that the petitioners pay cost of Rs. 2,000/- each to the respondent Nos. 1 and 2. No costs of the present petition. The cost is to be paid within a period of four (4) weeks from today. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11