( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1916 OF 2008 Sheikh Shabber Begu Bhi, R/o Devalali Pravar, Tq. Rahuri, Dist. Ahmednagar. PETITIONER VERSUS 1. Shahenaj w/o Tayyeab Shaikh R/o Sonai, Tq. Newasa, Dist. Ahmednagar. 2. Shabana w/o Ajjeja Shaikh, R/o Sonai, Tq. Newasa, Dist. Ahmednagar. RESPONDENTS ..... Mr. M.G. Kolse Patil, advocate for the petitioner. None for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 7th July, 2009] PER COURT : 1. By this petition, the petitioner seeks to challenge order rendered by the learned Civil Judge (J.D.), Rahuri on his application (Exh-20) in suit bearing R.C.S. No. 54/2007. ( 2 ) 2. The petitioner is original defendant No. 1. He was served with suit summons, but failed to file his written statement within period of 90 days under Order-VIII Rule-1 of the Civil Procedure Code. He filed an application (Exh-20) after period of 180 days from the date of service of summons and sought leave of the Court to allow him to file written statement. He urged that the written statement which was filed alongwith the application may be permitted. The learned Civil Judge (J.D.) dismissed the application on the ground that no ground was stated in the application to justify the delay in filing of the written statement. The learned Civil Judge held that in exceptional case, the delay can be condoned and the written statement could be permitted if, for just and proper reasons, it could not have been filed by the defendant. 3. Heard learned counsel for the petitioner. None appeared for the respondents. 4. Mr. M.G. Kolse Patil would submit that the ( 3 ) provision of Order-VIII Rule-1 of the Civil Procedure Code is directory in nature and the liberal approach should have been taken by the trial Court. He would submit that the delay was caused because of the fact that the plaintiffs did not furnish the required documents alongwith the copy of the plaint. He would submit that the learned advocate for the petitioner did not ascribe reasons in the application, yet, the petitioner should not be victim of the lapses committed by the advocate who represented him in the trial Court. 5. Before I consider the contentions of Mr. Kolse Patil, it may be made clear that the application (Exh-20) does not indicate a single reason for the delay in filing of the written statement. The application shows that the petitioner’s advocate urged the Court to allow filing of the written statement as a matter of right. It is, no doubt, clear that the petitioner did not ascribe any tangible reason in his application regarding the delay caused in filing of the written statement. It is for the first time in the present petition that the petitioner has come out with a case ( 4 ) that the respondent No. 1 did not give list of the documents which were annexed to the plaint. He was unable to know about nature of the documents filed in support of the plaint. It is pertinent to note that the respondents founded their claim in the suit on basis of `hiba’ (gift). They contended that deceased Begu Bhai who was their grandfather, had given the suit property under a oral gift. They sought declaration of ownership and injunction. 6. There cannot be any two opinion about the legal position that the provisions of Order-VIII Rule-1 of the Civil Procedure Code are directory in nature. Still, however, the question is as to whether in absence of any kind of explanation given by the petitioner, the written statement could have been allowed to be filed. The Apex Court in “M/s R.N. Jadi and Brothers and others v. Subhashchandra” AIR 2007 S.C. 2571, has laid down that the provisions of Order-VIII Rule-1 of the Code of Civil Procedure are directory in nature. It is, however, explicit on perusal of the said dictum that in ( 5 ) exceptional circumstances, the written statement can be submitted and not otherwise. The Apex Court in “Zolba v.Keshao and others” (2008) 11 SCC 769, observed : “It would be open to the Court to permit the appellant to file his written statement if exceptional circumstances have been made out....” “......In our view, the facts stated would constitute sufficient cause for condoning the delay in filing the written statement and it has to be taken that the non-availability of records at Nagbhid had prevented the appellant from filing the written statement within the period of limitation which in our view was an exceptional case constituting sufficient cause for condoning the delay in filing the written statement.” 7. The tenor of the simple application given by the petitioner shows total absence of any reason for the delay caused in filing of the written statement. When there is absolutely no reason ascribed for the delay, it is difficult to say that the petitioner was entitled to ( 6 ) claim leave to file the written statement after the statutory period of 90 days as provided under Order-VIII Rule-1 of the Civil Procedure Code. The petitioner cannot escape the legal responsibility by verbally saying now that the drafting of the application was defective on account of latches of the advocate. The petitioner is signatory of the application. The reasons for the delay cannot be supplemented by mere oral explanation at later point of time. In “Kailash v. Nanhku” (2005) 4 SCC 480, the Apex Court held that the extension can be granted only by way of exception and for reasons assigned by the defendant and also recorded by the Court to its satisfaction. By applying this ratio, the case of the petitioner is not worthy of consideration. In this view of the matter, the petition is without substance and as such, is dismissed. However, it is made clear that the petitioner will be entitled to participate in the suit proceedings and will be entitled to cross-examine the witnesses of the ( 7 ) plaintiffs to the extent of purpose of demolition of the case put forth by the plaintiffs. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP1916-08