1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No. 5750/2006 Laxman s/o Pandurang Waghmare and others Vs. The Joint Civil Judge and others. Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. LAVANDE, J. DATED : 04/08/2008. Heard Mr. Choudhari, learned counsel for the petitioners and Mr. Vyas, learned counsel for respondent nos. 2 and 3. None for other respondents though served. By this petition, the petitioners challenge the order dated 17.8.2006 passed by the Joint Civil Judge, Jr. Dn. Umred in Regular Civil Suit No. 14/2001 by which the application filed by the petitioners seeking leave to file written statement has been rejected. The petitioners are the defendants in the above suit filed by respondents 2 and 4 for partition and separate possession. The petitioners/defendants were served in the year 2001. The defendants filed reply to the application for interim relief filed by the plaintiffs and sought time to file written statement. The defendants did not file written statement from 2 2001 till 1/8/2005. On 1.8.2005 the trial Court passed an order of “no written statement”. Thereafter the defendants filed an application for setting aside the order dated 1.8.2005. However, by the impugned order dated 17.8.2006 the application has been rejected. It is the case of the defendants that initially advocate Mahalle was representing the defendants. Thereafter advocate Mendhe was representing the defendants and Advocate Mendhe became Government Pleader at Nagpur in the year 2006 but he did not inform the defendants that they had to file written statement. Thereafter the defendants engaged advocate Mane, who took inspection of the record and found that the Court had passed an order on 1.8.2005 of “ no written statement” . Thereafter on 13.7.2006 an application for setting aside the said order and leave to file written statement was filed, which was rejected by the trial Court. Mr. Choudhari, learned counsel appearing for the petitioners submitted that the petitioners/defendants cannot be made to suffer on account of mistake of their lawyers in not informing the defendants that they had to file written statement. According to Mr. Choudhari, the provisions under Order VIII Rule 1 of the Code of Civil Procedure (“the Code” for short) are directory and the defendants have made out an exceptional case for setting aside the order dated 1.8.2005. 3 Lastly, he submitted that the impugned order dated 17/8/2008 passed by the trial Court can be set aside by imposing costs on the petitioners. In support of his submission, Mr. Choudhari relied upon the judgment of this Court in Vivek s/o Late R.B. Mokadam vs. Smt. Kiran w/o S.K. Nashine : 2007(6) Mh.L.J.159. Per contra, Mr. Vyas learned counsel appearing for respondents 2 and 3 supported the impugned order. The records disclose that from 2001 till 2005 advocates appearing on behalf of the defendants sought time to file written statement but no written statement was filed on behalf of the defendants. In the application filed by the defendants, there is absolutely no whisper as to what attempts were made by the petitioners to file written statement. It is simply stated that the defendants were not informed that written statement had to be filed. The trial Court has held that the story given by the defendants that due to negligence of advocate Mahalle, no written statement was filed seems to be not probable and the conduct of the defendants is such that they were not interested to proceed in the suit and were only interested in delaying the matter. No doubt, the provisions under Order VIII Rule 1 of the Code is directory and not mandatory as has already been held by the Apex Court in the judgment relied upon by Mr. Choudhari. However, the fact 4 remains that the defendants have to make out an exceptional case for filing written statement beyond the period stipulated under Order VIII Rule 1 of the Code. I do not find any infirmity in the findings given by the trial Court. No exceptional case is made out by the defendants for permitting them to file the written statement. Judgment relied upon by learned counsel for the petitioners does not advance the case of the petitioners. Hence, I find no merit in the present petition. Hence, the petition stands dismissed. Interim order dated 22.11.2006 stands vacated. The parties shall appear before the trial Court on 8.9.2008 at 11.00 a. m. The trial Court shall proceed to dispose of the suit expeditiously. JUDGE Ambulkar.