1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD writ petition NO. 7579/2009 Rama s/o Baburao Sarak and others ...Petitioners versus Bansi s/o Dudha Sarak and others ..Respondents Shri S.R. Chaukidar, Advocate for petitioners. CORAM : B.R. GAVAI, J. Date : 17-11-2009 Per Court :- 1. By way of present writ petition, the petitioners challenge judgment and order passed by the learned Civil Judge (S.D.) Majalgaon thereby rejecting the applications filed by present petitioner vide common order below Ex. 70 and 72, for setting aside no written statement order and also for setting aside ex-parte order. 2. The suit summons were received by defendants / petitioners on 05-02-2008. The petitioners have put in 2 their appearance through counsel on 27-02-2008. However, since no written statement was filed on 15-06-2008, order of “no written statement.” came to be passed. It appears that since the petitioners did not remain present, the court also passed order to proceed ex-parte. 3. Two applications came to be filed for setting aside this order. The applications are decided by common order dated 29-08-2009. Being aggrieved by the said order, they have preferred present petition. 4. Shri Chaukidar, the learned counsel appearing on behalf of the petitioners submit that the learned trial court has grossly erred in rejecting these applications. It is submitted that the learned trial court ought to have considered that the petitioners are rustic and illiterate persons and therefore, the learned trial court ought to have allowed the application. 5. In view of the amended provisions of Order VIII Rule 1 of Civil Procedure Code, the defendant is required to file written statement within a period of 30 3 days from the date of receipt of suit summons. If adequate reasons are given, written statement can be accepted within extended period of 90 days. Though the defendant is required to file written statement in 90 days from the date of receipt of suit summons, the Apex Court has held that, the said provision is not mandatory but directory. However, it has been held that unless the party makes out an exceptional case giving sound reasons as to why there was delay in approaching the Court,the court should not grant the application for acceptance of written statement in casual manner. 6. In the present case, though the suit summons are served on 05-02-2008, for a period of more than four months no written statement was filed and as such order of “no written statement” came to be passed on 11-02-2008. Even thereafter for a period of almost 1 year, 1 month and 20 days, the petitioners have not taken any steps for setting aside said order and placing written statement on record. Only on 01-08-2009 the application came to be filed and that too on the ground that the petitioners are rustic and illiterate persons. 4 The perusal of the application reveals that no exceptional compelling reasons to convince that the petitioners could not have filed written statement within a period of 90 days, for reason beyond their control, have been pointed out. In that view of the matter, it can not be said that discretion exercised by the learned trial court in refusing to set aside no written statement and ex-parte order are either perverse or unjust. 7. In that view of matter, no interference in the order passed by lower court; is warranted. The writ petition is dismissed. [B.R. GAVAI, J.] tsk/wp7579.09