1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.480 OF 2010 Shaikh Ishaq Shaikh Gafur ...Petitioner vs. M/s.Safari Builders & Ors. ...Respondents Mr.V.B.Naik i/b Mr.Sukand Kulkarni for the petitioner None for the respondents CORAM :A.S.OKA,J. DATE : MARCH 12, 2010 P.C. 1 Heard the learned counsel for the petitioner. He states private notice for final disposal in terms of the order dated 27 th January 2010 has been duly served to the respondent nos.1 and 2 and an affidavit of service has been filed. Hence, the petition is taken up for final disposal at admission stage. 2 The present petitioner is the defendant no.1(a) in the suit filed by the respondent nos.1 and 2. An application was made by the petitioner at Exhibit-72 on 29 th November 2008 for grant of time to file written statement. The said application was opposed by the respondent nos.1 and 2 on the ground that the time for filing written statement has already expired. On the very day, the said application was rejected. 3 Another application was made by the petitioner before the trial Court contending that the suit summons has been served to his son and that his son has not informed him about the service of summons. It is stated that the written statement was tendered along with the said application within 90 days from the date on which the petitioner became aware of the pending of the suit. 2 It is pointed out that the Court has not passed order for proceeding with the suit without written statement. An affidavit was filed by the petitioner on 19 th March 2009 in support of the application. He stated that he was a partner of the first defendant-firm along with his son. It is stated that his son is residing separately from him and they are not on good terms. He stated that he has not been served with the suit summons and he has not signed the suit summons. In paragraph 2 of the affidavit, he has stated on 22 nd October 2008, one of his friends Mr.Nandkumar Otari became aware of the suit and thereafter, on 25 th November 2008, the petitioner was made aware by Mr.Otari about the suit. Thereafter, the petitioner approached an Advocate and immediately on 29 th November 2008 filed an application for grant of time through the Advocate. By the impugned order, the trial Court has rejected the said application made by the petitioner on 9 th February 2009 for taking the written statement on record. 4 After having considered the submissions made by the learned counsel for the petitioner, I find that this was a case where the written statement ought to have been taken on record. Rule 1 of Order VIII of the Code of Civil Procedure,1908 as amended has been held to be directory. In the affidavit in support of the application, the petitioner has set out as to how he became aware on 25 th November 2008 for the first time about the suit. Thereafter on 29 th November 2008 an application has been made for grant of time to file the written statement. On 9 th February 2009, the present application was filed for taking the written statement on the record of the suit. In the application it is stated that the trial Court had not passed any order for proceeding without the written statement of the 3 petitioner. It is sought to be contended by the petitioner that till 25 th November 2008 he was not aware of the suit. Considering the nature of the reasons set out in the application and in the affidavit, this was a case where the trial Court ought to have exercised the discretion by permitting the written statement to be filed. 5 Hence, I pass the following order : Petition is allowed in terms of prayer clause (b). Written statement tendered by the petitioner shall be taken on record. JUDGE