1 WP 891/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 891 OF 2010 Balaso @ Vitthal Baban Jagtap .. Petitioner V/s Salim Ismail Mujawar & Ors. .. Respondents Mr. A.P. Kulkarni for the petitioner. Mr. R.S. Kate for respondent nos.1 and 2. CORAM: D.G. KARNIK, J. DATE : 26TH JULY 2010 P.C. : 1. Heard. 2. By this petition, the petitioner challenges the order dated 12 January 2010 passed by the learned Civil Judge, Junior Division, Saswad, rejecting the petitioner’s application for setting aside the “no W.S. order” and taking his written statement on record by condoning the delay in filing the written statement. 3. Respondent nos.1 and 2 filed a suit against the petitioner (defendant no.2) and respondent no.3 (defendant no.1). In the said suit, writ of summons was served on the 2 WP 891/10 petitioner on 24 August 2008. He did not file the written statement within 30 days and even within the maximum period of 90 days permitted under Order 8 Rule 1 of the Code of Civil Procedure (for short “the Code”). The Court rejected the petitioner’s application for further extension of time and passed “no W.S. order” on 24 June 2009. Thereafter the petitioner made an application on 24 September 2009 for setting aside the “no W.S. order” and taking the written statement on record by condoning the delay. By the impugned order, the application was rejected. 4. In Exhibit-24, the petitioner had prayed for extension of time to file written statement on the ground that respondent no.3 (defendant no.1) was not yet served and, therefore, he (defendant no.2) be granted time to file the written statement. If one of the defendants to the suit is not served, that would not confer a right on the remaining defendants not to file the written statement till all the defendants are served. Hence, the trial court rightly rejected the application. The reason given for condonation of delay is also not satisfactory. Counsel for the petitioner, however, submitted that the respondent no.3 (defendant no.1) is a village panchayat and the petitioner is its sarpanch and a public body should not 3 WP 891/10 suffer loss on account of non-filing of the written statement by its sarpanch, viz. the petitioner. This contention is also without merit. Respondent no.3 (defendant no.1) can file the written statement after it has been served. The allegations in the plaint against the petitioner are that he had personally committed encroachment on the land. As such, the petitioner ought to have filed the written statement so far as those allegations against him. No sufficient reason has been made out by the petitioner for failure to file the written statement. 5. In Kailash v. Nanhku, AIR 2005 SC 2441, the Supreme Court, while holding that the provisions of Order 8 Rule 1 of the Code are directory, has further observed that nonetheless the time for filing of the written statement cannot be extended lightly. For such extension, the application must be made in writing supported by an affidavit making good grounds. In the present case, good grounds for extending the time have not been made out. In the circumstances, no error can be found in the order of the learned trial Judge. The writ petition is rejected summarily. (D.G. KARNIK, J.)