1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7878 OF 2009 Mrs. Shevantabai Dnyaneshwar Shinde & Anr. .. Petitioners Vs Smt. Pravina Pramod Doshi & Ors. .. Respondents -- Shri V.P. Savant for the Petitioners. Shri A.B. Avhad for Respondent Nos.1 to 3. Shri Prabhakar Jadhav for Respondent Nos.4 and 5. -- CORAM : A.S.OKA, J. DATE : 18TH FEBRUARY, 2010 P.C: . The Petitioners who are the 1st and the 2nd Defendants have taken an exception to the order dated 26th June, 2009 passed by the learned Trial Judge on an application made by them at Exhibit-54. 2. The 1st to 3rd Respondents are the original Plaintiffs and the 4th and the 5th Respondents are the original 3rd and the 4th Defendants. The application at Exhibit-54 was made by the Petitioners on 20th April, 2009 for setting aside the order dated 4th August, 2008 passed by the Trial Court. By the said order dated 4th August, 2008, the Trial Court directed that the suit will proceed without the Written Statement of the Petitioners. Another 2 prayer was made for accepting the Written Statement of the Petitioners which was tendered along with the said application. In the said application, it was contended that the 2nd Petitioner has been suffering from diabetes and his one of the two kidneys was not functioning. It is stated that the 2nd Petitioner was advised to take rest and he was advised not to undertake any travelling. He stated that the 1st Petitioner being the wife of the 2nd Petitioner was required to give constant company to the 2nd Petitioner. It is alleged that the 2nd Petitioner is confined to bed. Reliance is placed on medical certificates dated 2nd April, 2009 and 31st March, 2009. The said application was opposed by the 1st to 3rd Respondents. Learned Trial Judge observed that the Petitioners appeared in the suit on 25th January, 2008 and thereafter number of adjournments were sought by them. The learned Trial Judge observed that the medical certificate of Doctor Niranjan Ambekar was not signed by the said Doctor but it was signed by somebody else on his behalf. The learned Trial Judge has held that there was a gross and unexplained delay of one year and, therefore, the application was rejected. 3. The learned counsel appearing for the Petitioners pointed out that the application has been rejected on a hyper technical ground that the medical certificate is not signed by the Doctor Niranjan Ambekar himself. He pointed out that the certificate has been issued on the letter head of Doctor Ambekar and, therefore, even if the certificate is signed by another Doctor, it could not have been ignored. He submitted that the medical 3 certificate dated 2nd April, 2009 issued by the Doctor Suhas Erande has not been considered which shows that due to heart disease, the 1st Petitioner was advised in January 2008 to restrict his activities. He submitted that the Petitioners can always produce a fresh certificate signed by the Doctor Ambekar himself. He submitted that justice oriented approach ought to have been adopted by the Trial Court. 4. The learned counsel appearing for the 1st to 3rd Respondents (Original Plaintiffs) opposed the Petition. He pointed out that repeatedly adjournments were taken by the Petitioners. He submitted that the Petitioners did not seek time on the ground of illness of the 2nd Petitioner. He pointed out that the 4th Respondent (3rd Defendant) is a Constituted Attorney of the Petitioners in respect of the suit property from 21st February, 2007. He pointed out that even the present Petition has been affirmed by the said Constituted Attorney and in fact a Petition appears to have been filed by the said Constituted Attorney. He submitted that the 4th Respondent (3rd Defendant) avoided the service of summons and ultimately the summons was required to be published in newspapers. He submitted that the application made by the Petitioners was malafide. He, therefore, submitted that no interference is called for with the impugned order. 5. The learned counsel appearing for the Petitioners submitted that the application at Exhibit-54 was filed under the signatures of the Petitioners and the same has not been filed by their Constituted Attorney. 4 He submitted that the Petitioners themselves are defending the suit and not through the Constituted Attorney. 6. I have carefully considered the submissions. It is not in dispute that the suit is governed by the amended Rule 1 of Order VIII of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ). The Petitioners filed their appearance through an Advocate on 25th January, 2008. Therefore, the Trial Court has observed that the Written Statement ought to have been filed by the Petitioners on or before 26th April, 2008. As stated earlier, an order to proceed without the Written Statement of the Petitioners was passed by the Trial Court against the Petitioners on 4th August, 2008. 7. Perusal of the Roznama shows that on 25th January, 2008, 8th February, 2008, 10th March, 2008 and 10th April, 2008, applications were made by the Advocate for the Petitioners for grant of time to file the Written Statement. The Court granted time to the Petitioners. It appears that on 5th July, 2008, the 4th Respondent (the 3rd Defendant) filed appearance in the suit through an Advocate. The appearance was filed after the summons was published in the newspapers. Thereafter, the suit was adjourned from time to time. On 4th August, 2008 an order was passed to proceed with the suit without written statement. On 13th October, 2008, the 4th and the 5th Respondents filed their Written Statements. Thereafter, an application for temporary injunction was heard and on 29th December, 5 2008, the said application was allowed by which injunction was granted against the Petitioners. Thereafter, the suit was fixed on 20th January, 2009, 30th January, 2009, 7th February, 2009, 13th February, 2009, 25th February, 2009, 7th March, 2009, 13th March, 2009, 18th March, 2009, 8th April, 2009 and 20th April, 2009. The Application at Exhibit-54 was filed by the Petitioners on 20th April, 2009. It must be stated here that a Power of Attorney has been executed by the Petitioners on 21st February, 2007 in respect of the suit property in favour of the 4th Respondent. The power of attorney is an exhaustive power of attorney which authorises to the 4th Respondent to engage an Advocate, to sign pleadings, etc. The 4th Respondent is the purchaser of the suit property through the Petitioners. The 4th Respondent filed her own Written Statement on 13th October, 2008 when she was holding the power of attorney of the Petitioners. The present Petition has been filed by the said Constituted Attorney i.e. the 4th Respondent. Even assuming that the certificate dated 31st March, 2009 of Doctor Niranjan Ambekar can be read in evidence, the said certificate records that the 2nd Petitioner was under his treatment from 24th January, 2009. There is not explanation as to why the 4th Respondent did not take any step for defending the suit on behalf of the Petitioners. 8. Rule 1 of Order VIII of the said Code is held to be directory. The Apex Court has held that only in rare cases that the time to file Written Statement can be extended for the reasons recorded. In the present case, there are no extra-ordinary reasons or circumstances on the basis of which 6 the time can be extended. The 4th Respondent could have always taken steps to file written statement on behalf of the Petitioners on the basis of the power of attorney. The said Respondent who is claiming to be a transferee through the Petitioners has already filed the Written Statement for defending the suit. 9. Therefore, this is not a case where interference can be made under Article 227 of the Constitution of India. Hence, I pass the following order. (a) The Writ Petition is rejected. There will be no order as to costs. (b) The Petitioners are permitted to withdraw the amount of Rs.7,500/- deposited in this Court. (c) On the prayer made by the learned counsel appearing for the Petitioners, ad-interim relief granted earlier to continue for a period of six weeks from today. (A.S.OKA, J)