(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 8523 OF 2009 Bhaskar s/o. Manik Dhaygude. .. Petitioner (Original defendant no.1) versus 1. Vitthal s/o. Tolaba Dhaygude, 2. Manik s/o. Tolaba Dhaygude, .. Respondents 3. Govind s/o. Baburao Dhaygude, (No.1 - Original 4. Baburao s/o. Dharba Dhaygude, plaintiff 5. Anusayabai Tolaba Dhaygude & (Since deceased). Nos.2 to 6 - Original 6. Dharba s/o. Baburao Dhaygude. defendants) .......................... Mr. S.V. Mundhe, Advocate, for the petitioner. .......................... CORAM : B.R. GAVAI, J. DATE : 15TH DECEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner challenges the order (2) dated 21st November 2009, passed by the learned Joint Civil Judge (Junior Division), Gangakhed, below Exhibit 43 in Regular Civil Suit No. 374/2004, thereby rejecting the application filed by the present petitioner for setting aside the order of "No written statement" and for placing the written statement on record. 2. Mr. S.V. Mundhe, learned Counsel appearing for the petitioner, submits that the petitioner was prevented from filing written statement within the stipulated time as the record was not traceable since the proceedings came to be transferred to Gangakhed court from Palam court and after that for a period of two years, he was outside the village for bread and butter. 3. The application for setting aside the order of "No written statement" came to be filed after a period of 3 years and 11 months from the date of passing of the order. 4. The Apex Court in the case of Kailash Vs. Nanhku and others (2005 AIR SCW 2346) has held that a party is required to file written statement within a period of 30 days from the date of service of suit summons and for the reasons to be recorded, within extended period of 90 days from the date of service of suit summons. However, it has also been held that though the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, are couched in negative terms, the same are not mandatory but directory. It has further been held, that to allow a party to file written statement within 90 days is a rule and departure therefrom is an exception. It has been further held that unless compelling (3) circumstances are made out, the court does not have jurisdiction to extend the period. 5. In the present case, two reasons given are that for one year, the record was not available and for the remaining period, the petitioner was outside his village for bread and butter. Accepting the contention of the petitioner, that for one year since the record was not traceable and, therefore, he could not file application for a period of one year, still it cannot be said that the another reason given for two years and 11 months, that the petitioner was out of his village for bread and butter and, therefore, could not file an application, can be said to be compelling circumstance so as to invoke extraordinary jurisdiction for extension of period for filing written statement. 6. In that view of the matter, no perversity could be found with the approach adopted by the learned Judge of the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 7. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp8523