IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10415 OF 2004 WRIT PETITION NO.10415 OF 2004 WRIT PETITION NO.10415 OF 2004 Yashodabai Tikaram Tikole (deceased) through Legal Heirs and Ors. .. Petitioners V/s Shashikant Vitthalrao Jadhav .. Respondent Mr.I.M.Khairdi for the Petitioners. Mr.S.S.Shah for the Respondent. CORAM : DR.S.RADHAKRISHNAN, J. CORAM : DR.S.RADHAKRISHNAN, J. CORAM : DR.S.RADHAKRISHNAN, J. DATE : 8th December, 2006. DATE : 8th December, 2006. DATE : 8th December, 2006. P.C.: P.C.: P.C.: 1. Rule. Rule is made returnable forthwith. The learned Counsel for the Respondent waives service. By consent taken up for hearing. 2. By this petition, the Petitioner is challenging the order dated 5th June, 2004 passed by the learned Civil Judge Sr.Division, Solapur rejecting the application of condonation of delay of the petitioners with regard to the filing of their written statement. 3. The brief facts are that the written statement was not filed within the prescribed period of 30 days and thereafter within the extended period of 60 days viz.90 days from the date of service of summons as per Order VIII Rule 1 of the Code of Civil Procedure. It appears that the Petitioners being the original Defendants all reside together and are related to each other. The Written statement was tendered on 8th March, 2004 alongwith the application for setting aside the order of no written statement and for permitting the same to be taken on record. It is also an admitted fact that the Petitioner No.1 who was the main person in the above matter who was handling the matter was suffering from cancer and died of cancer on 16th July, 2004. The Petitioners have also annexed the relevant medical certificate with regard to the Petitioner No.1 suffering from cancer. The learned Civil Judge, Senior Division, Solapur had dismissed the application solely on the ground that the written statement was not filed within the period of 90 days and that any delay beyond the same cannot be condoned. 4. A bare reading of Order VIII Rule 1 of Code of Civil Procedure indicates that beyond the period of 90 days probably the Court did not have the power to extend time and permit the party to file the written statement. However, in view of the judgment of the Hon’ble Supreme Court in the case of Kailash V/s.Nankhu - (2005) 4 SCC Kailash V/s.Nankhu - (2005) 4 SCC Kailash V/s.Nankhu - (2005) 4 SCC 484 484 484, now it is a settled law that if the Court is satisfied of genuine and exceptional circumstances in a given case, the Court is not powerless to condone the delay even beyond the said period of 90 days. The learned Counsel for the Respondent could not dispute the aforesaid position of law in view of the aforesaid judgment of the Hon’ble Supreme Court. In the above case the Writ of Summons was served on the Petitioners on 6th October, 2003 and the written-statement was filed on 8th March, 2004, which was about two months beyond the prescribed period of 90 days. 5. Having regard to the aforesaid facts and circumstances of the case especially exceptional circumstance of a serious ailment of cancer and also in view of the larger interest of justice, especially when the Petitioner No.1 was suffering from cancer and could not file the written statement within the time prescribed, this is a fit case that the learned Civil Judge, Senior Division, ought to have exercised his discretion in favour of the Petitioners and ought to have allowed them to file written statement. If written statement is not allowed to be filed, grave injustice would be caused to the Petitioners. Under these circumstances, Rule is made absolute in terms of prayer clause (b). 6. Having regard to the facts and circumstances of the case the hearing of the suit is expedited and the learned Civil Judge, Senior Division, Solapur is directed to dispose of the same as expeditiously as possible. (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)