1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition NO. 7586/2009 Hawabi w/o Yasuf Shaikh ...Petitioner versus Shivaji s/o Kisan Shelke and others ..Respondents. Shri S.C. Havelikar, Advocate for appellant. CORAM : B.R. GAVAI, J. Date : 17-11-2009 Per Court :- 1. By way of present petition, the petitioner challenges the order dated 19-08-2008, passed by learned Civil Judge (J.D.), Karjat thereby rejecting application filed by the present petitioner for setting aside no written statement order and for placing on record their written statement. 2. The suit has been filed by the respondent / plaintiff, for perpetual mandatory injunction, directing the defendant / petitioner to remove the construction of compound in the land of the plaintiff and for perpetual injunction, restraining defendant/s from interfering in the peaceful possession 2 of the plaintiff. The suit summons were duly received by defendant/s on 20-07-2007. Since written statement was not filed within a period of 30 days and extended period of 90 days, the “no written statement” order came to be passed on 28-08-2007. The petitioner thereafter filed an application on 03-12-2007 for setting aside no written statement order. It was contention of the petitioner that the petitioner was ill and therefore, he could not file written statement within prescribed period. The said application is rejected. Hence, present petition. 3. Shri Hawelikar learned counsel appearing for petitioner, submits that the written statement could not be filed due to following two reasons. (i) Firstly, that the petitioner was ill and therefore, written statement could not be filed within prescribed period, (ii) secondly, earlier lawyer was changed and only after new lawyer was engaged, he has taken steps for filing written statement. He has relied on the judgment of Apex court Dr. R.N. Jadi and Brothers and Others v/s Subhashchandra 2007 AIR SCW 4568. 4. By the amendment in Civil Procedure Code in the year 2002, the provisions of Order VIII Rule 1 are also amended. In view of the amended provisions, the defendant is required to file written statement within 30 days from the date of service of summons. The proviso of Order VIII Rule 1 permits written statement to be filed beyond period of 30 days but within 3 period of 90 days and that too for the reason was to be recorded. However, said provision have been held to be mandatory and not directory. The Apex Court in the case Kailash v/s Nankhu and others 2005(3) Bom. C.R. 906 (Supreme Court) has observed thus – “A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court my indeed put the defendants on terms including imposition of compensatory costs and may also insist on affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the Court. In no case, the defendant shall be permitted to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his Counsel. The Court may impose costs for dual purpose: 4 (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order VIII, Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. We hold that Order VIII, Rule 1, though couched in mandatory form, is directory being a provision in the domain or processual law.” 5. Same view has been taken by Apex Court in case of R.N. Jai and others on which learned counsel for the petitioner relies. The Apex Court has held that rules of procedure are handmade of justice and merely because provision of Order VIII Rule 1 are couched in negative manner, jurisdiction of the Court to accept written statement beyond period of 90 days is not taken away. It has been held that, if the parties makes out exceptional and compelling case, it would be within jurisdiction of the court, to accept written statement even after the period of 90 days. 6. In the present case, no reasons have been given as to why 5 written statement could not be filed within initial period of 30 days and extended period of 90 days. Vague ground that is stated in the application is illness of defendant. In support of this ground, reliance is placed on some medical certificates of the defendant no.1. One of such certificates pertains to date 08-08-2003. The another one is dated 06-01-2008. The third one refers is dated 25-08-2009. However, all these certificates would reveal that the petitioner was taking medical treatment as outdoor patient and these documents are either diagnosis report or prescriptions issued by medical practitioner. It could be seen that, there is no material placed on record either of hospitalization of defendant no. 1 between 20-07-2007 to 20-10-2007 i. e. dates on which suit summons were received by the petitioner and no written statement order was passed or between 20-10-2007 till 03-12-2007 i.e. the date on which application for setting aside written statement came to be filed. Apart from that, it is to be noted that there are more defendants in the suit. The petitioner is a mother of defendant nos. 2 and 3. The defendants no. 2 and 3 are aged 37 and 35 respectively. At least there is no reason placed on record as to why written statement could not be filed by them within stipulated period. 7. So far as second ground regarding change of advocate is 6 concerned, there is no whisper in the application regarding the same. In that view of the matter, reliance placed on that ground is without any substance. 8. As already discussed herein above, the Apex Court has in unequivocal terms held that, filing of written statement within 30 days and for reasons to be recorded within extended period of 90 days is matter of rule and the jurisdiction to accept written statement beyond period of 90 days is a matter of exception. Unless the party points out compelling and exceptional circumstances, the Courts are not expected to accept written statement beyond period of 90 days. 9. So far as the judgment of Apex Court in the case of Dr. R.N. Jadi and Brothers and Others v/s Subhashchandra 2007 AIR SCW 4568 cited supra, on which the learned counsel has relied, is concerned, in the said case learned trial court for the reasons recorded had accepted written statement beyond period of 90 days. However, same was set aside by the Karnataka High Court on the ground that the provision of Order VIII Rule 1 of Civil Procedure Code were mandatory and that the Court had no jurisdiction to entertain application for acceptance of written statement after period of 90 days and in that view of the matter, Apex court held that, the view taken by Karnatka High Court was 7 erroneous. In the present case, discretion has been exercised by the learned trial court not to accept written statement after 90 days finding that the reason given by the petitioner was neither genuine nor convincing. It is also settled law that this Court is exercising its extra ordinary jurisdiction under Article 227, would interfere with a discretionary order only when it is found that discretion exercised by the trial court is exercised with perversity. 10. The learned trial court has given sound reasons as to why he does not find application filed by present petitioner for acceptance of written statement beyond period of 90 days, to be acceptable. In that view of the matter, no case is made out for interference. Hence, petition is rejected. [B.R. GAVAI, J.] tsk/wp7586.09