ssm 1 904.wp.2571.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2571 OF 2010 Prashant Sudam Jori and others ....Petitioners Versus Jijabai Ramdas Jaware and others ....Respondents ____________ Mr. Avinath B. Avhad for the Petitioners. Smt. Lalita Panchakshari for the Respondent Nos. 1 to 6 CORAM: B. R. GAVAI, J. DATED : 18 TH MARCH, 2011. P.C.: Rule. Rule is made returnable forthwith. Heard by consent. 2. By this Petition, Petitioners challenge the order dated 22 nd January, 2010, vide which the application filed by the present Petitioners for setting aside the No W.S. order, came to be rejected. 3. The learned Counsel for the Petitioners submit that since the Petitioner's wife was seriously ill and who subsequently died, the ssm 2 904.wp.2571.10 written statement could not be file within the stipulated period. The learned Counsel for the Respondents, vehemently opposed the Petition. She submits that the learned Trial Court has given sound and cogent reasons for rejecting the application and as such no interference is warranted. 4. No doubt that the Apex Court in the case of Kailas Vs. Nanhku reported in (2005) 4 SCC 480 has held that though the provisions of Order 8 Rule 1 are directory and not mandatory, however, the discretion for permitting the written-statement to be taken on record has to be exercised only in exceptional and compelling circumstances when party makes out genuine case for the same. 5. In the present case, the Trial Court found that the wife of the Petitioner has expired after a period of 90 days. It reveals from the record that she was suffering from Swine Flu during the period of 90 days. I therefore find that case has been made out by the ssm 3 904.wp.2571.10 Petitioners for setting aside No.W.S. order. 6. The Petition is allowed. The impugned order dated 22nd January, 2010 is quashed and set aside and Petitioner is permitted to place the written statement on record on the condition that the written statement shall be filed within a period of 2 weeks from today. However, the same shall be subject to costs quantified to Rs.10,000/-. The costs to be deposited in the Trial Court within a period of 2 weeks from today. On deposit of the said amount, the Respondents would be entitled to withdraw the same. The condition of deposit of costs is a condition precedent for allowing the Petition. Parties to act on an authenticated copy of this order. (B. R. GAVAI, J.)