wp8493-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8493 OF 2010 Mr.Shirish Genbhau Kalate & Ors .. Petitioners versus M/s.Serene Shelters (Pune) Pvt Ltd & Ors .. Respondents Mr.N.V.Walawalkar, Sr. Counsel i/by Sundeep Salunkhe for the petitioners. CORAM : B.R.GAVAI, J. 2nd MAY 2011. P.C.: . Inspite of being duly served with the notice, none appeared for the respondent as such. Vide order dated 18th March 2011 a fresh notice for final disposal was issued. Accordingly, an affidavit has been filed on behalf of the petitioner stating that both the respondents are duly served. Mr.Jitendra Gaikwad, advocate, appears for respondent Nos.2 and 3. However, inspite of the second notice for final disposal being duly served, none appears for the respondent No.1 who is the plaintiff. 2 Rule. Rule made returnable forthwith. Heard by consent. wp8493-10.doc 2 3 The petitioners take an exception to the order impugned dated 5th December 2008 vide which the application filed by the present petitioner for grant of time to file written statement came to be rejected. 4 The respondent No.1-plaintiff has filed a suit for specific performance against the present petitioner. In the said proceedings the petitioners have engaged a lawyer whose name would appear at page 26 of the paperbook. According to the petitioners an substantial amount of Rs.15 lacs was paid to the said lawyer for appearing in the matter. It is, however, the case of the petitioner that though the said lawyer was engaged, the said lawyer had not informed the petitioners about the further proceedings in the matter and only after no written statement order was passed, the petitioners came to know about the said order. It is further submitted that, as a matter of fact the petitioners have already filed an reply to the application for temporary injunction. It is further submitted that the counsel engaged has been negligent and a complaint to the Bar Council wp8493-10.doc 3 for the same is already filed by the petitioners. Mr.Walawalkar, learned senior counsel for the petitioner submits that the petitioners should not be made to suffer on account of the negligence on the part of the counsel. He further submits that the petitioners are willing to pay the costs of Rs.1,00,000/- so as to compensate for the prejudice, if any, caused to the other side. 5 No doubt that the provisions of Order VIII, Rule 1 of the Code of Civil Procedure require that the written statement should be initially filed within a period of 30 days and if not filed within the stipulated period, the same should be filed within a period of 90 days for the reasons to be recorded by the learned trial Court. However, the Apex Court in the case of Kailas Vs. Nanhku reported in (2005) 4 SCC 480 has held the said provisions, not to be mandatory but directory. It has been held that the Court is not powerless to permit the written statement to be taken on record, if exceptional and compelling case is made out by the parties. 6 In the present case, it can be clearly seen that the reason for not filing the written statement within the stipulated wp8493-10.doc 4 period was the negligence on the part of the lawyer. The petitioners have also shown courage of making complaint to the Bar Council, which normally the litigants are reluctant to do. It is settled principle of law that a party should not be made to suffer on account of the negligence of a lawyer. It is further to be noted that the petitioners have already filed their reply to the application for temporary injunction. 7 In order to compensate the plaintiff for the prejudice, if any, caused to him, the costs could have been saddled upon the defendant, payable to the plaintiff. However, inspite of two notices being served court the respondent-plaintiff has chosen not to remain present for the reasons best known to him. However, since the petitioners themselves have expressed their readiness to pay costs of Rs.1,00,000/- and since I am of the view that though it is basically the negligence of the lawyer, the parties are also atleast to some extent responsible for the delay caused in filing the written statement, the petitioner should be made to pay the costs, but the same would be paid to the High Court Library. wp8493-10.doc 5 8 In that view of the matter, the following order: : O R D E R : (1) The impugned order is quashed and set aside. The petitioners are permitted to file the written statement, if so filed, prior to 11th June 2010. (2) However, filing of the written statement shall be subject to costs to be paid by the petitioners of Rs. 1,00,000/- to the Kirtikar Law Library, High Court, Bombay. The costs be paid prior to filing of the written statement before the learned trial Court. It is further made clear that written statement will be accepted on the condition that the petitioner annexes the copy of the receipt alongwith the written statement. (3) Rule is made absolute accordingly. (B.R.GAVAI, J)