1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.188 OF 2010 Kantaram Dnashewar Sandbhor & Anr. .. Petitioners versus Navchaitnaya Sahakari Gruharachana Sanstha Maradiyat Co-op. Society .. Respondent Mr.U.B.Nighot for the petitioners. Mr.V.B.Tapkir for the respondent. CORAM : A.S.OKA, J. DATE : 23rd February 2010. P.C.: . Heard learned counsel appearing for the petitioners. I have heard the learned counsel that the 1st respondent. The 1st respondent is the original plaintiff and the 2nd respondent is the original defendant No.1. Considering the relief claimed in the writ petition, the 2nd respondent is not a necessary party. 2. The petitioners are 2nd and 3rd defendants. The 1st petitioner was served with the suit summons on 17th December 2007. The petitioners filed their appearance in the suit on 19th December 2007. On 15th March 2008, the learned trial Judge passed an order directing that the suit will proceed without written statement. An application was made by the petitioners on 2nd July 2008 praying that the said order be set aside and their written statement be taken on record. The said application was opposed by the 1st respondent. By the impugned order, the application has been rejected. 2 3. After having heard the submissions of the learned counsel appearing for the parties, I find that this was a case where the trial Court ought to have set aside the order to proceed with the suit without written statement. As stated earlier, the petitioners entered appearance on 19th December 2007. The application for grant of time to file written statement made by the petitioners was rejected by the trial Court on 15th March 2008. Till 7th April 2008, summons was not served to the original 1st defendant and in fact summons was re-issued on 7th April 2008 returnable on 2nd May 2008. 4. The provision of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 has been held to be directory. The application on which impugned order has been passed was made on 2nd July 2008. The written statement of the petitioners was tendered on record alongwith the said application. From the reply filed by the 1st respondent it appears that the said application was not seriously opposed and in fact it was submitted in the reply that if the Court comes to the conclusion that there is sufficient reason to condone the delay, the application be allowed with costs of Rs.1,000/-. Considering the facts of the case, the trial Court ought to have allowed application subject to payment of costs. The amount of costs is quantified at Rs.2,500/-. 5. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 11th November 2009 is quashed and set aside. 3 (b) The application at Exhibit 35 is allowed subject to petitioners paying costs of Rs.2,500/- to the 1st respondent within a period of six weeks from today. (c) The deposit of the amount of costs with the trial Court within the stipulated period shall be treated as sufficient compliance. (d) Writ petition is allowed in above terms. (A.S.OKA,J)