-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.5244 of 2007 1. Shri Eknath Shivram Bhosale and others ..Petitioners vs. Shri Pandurang Shankar Bhosale ..Respondent Shri P.J.Pawar for petitioners. Shri P.P.Tendulkar for respondent. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. 9th January, 2008 9th January, 2008 9th January, 2008 P.C. P.C. P.C. 1. Special Civil Suit No.18 of 2006 has been filed by the respondent against the petitioners who are the original defendants. The suit summons was received on 13th March, 2006. It is undisputed that in the suit summons 19th April, 2006 was the date stipulated. The suit summons having been received the petitioners appeared before the Court. The matter was adjourned at the request of the petitioners till 16th June, 20906. The grievance of the respondent/plaintiff before the Trial Court was that 13th March, 2006 was the date on which the summons was received. 90 days have expired on 16th June, 2006. Even thereafter the defendants who are the petitioners before me did not file -2- their written statement and that is how "No W.S." order was passed by the Trial Court. The Trial Court passed this order after noticing that the petitioners were absent on subsequent dates. 2. Thereafter, an application was filed for recalling the order of "No W.S." . That application was filed on 7th March, 2007. The reason put forward was that defendant no.1 was ailing whereas defendant no.2 was busy in Karad Municipal Council elections and the same were contested by him from Ward no.5. His wife defendant no.3 was also contesting candidate from Ward no.17. In such circumstances, they could not remain present nor they could give instructions to their Advocate. Thereafter their Advocate had gone on leave with the permission of the District Court. It is in these circumstances that they sought the relief of recalling the "NO W.S." order and prayed that their written statement be taken on file. 3. That application having been rejected by the impugned order the present petition is filed. 4. Shri Pawar states that the petitioners have -3- already prepared their written statement and on 7th March, 2007 they could have tendered the same in the Trial Court. The court should have accepted the same by imposing costs. 5. Shri Pawar relies upon the order passed by this Court in Writ Petition No.4505 of 2007 on 19th December, 2007. He submits that in similar facts and circumstances, this Court set aside the order of the Trial Court and granted opportunity to defend the suit. He submits that such a view can also be taken in the instant case. 6. Ms.Tendulkar, learned Counsel appearing for the respondent opposed this petition and submitted that despite the provisions being held to be directory the Hon’ble Supreme Court has observed that the written statement must be filed within the time stipulated by law and extensions must be exceptions. Extensions can be granted so also discretion can be exercised only when exceptional circumstances are pointed out. Contesting the election is no ground. 7. I have perused the petition and annexures thereto. While it is true that the petitioners -4- could not have made an excuse of elections as they were announced some time in November, 2006, yet, the Trial Court has not examined the correctness of other plea with regard to illness of one of the defendants and that the other defendant being lady, lshe was not been able to contact the male member and give instructions earlier. Further, the learned Advocate was also not available. In such circumstances and when the suit is of the year 2006, the delay could have been condoned by imposing heavy costs. Though I am not in agreement with the submission that contesting of election could be a ground for seeking extension of time, yet, taking an over all view of the matter, interest of justice would be subserved if the petitioners’ written statement is taken on record but by imposing costs quantified at Rs.15,000/- Costs payable to the original plaintiff. 8. If the costs are paid in the Trial Court and proof thereof is tendered, written statement shall be taken on file and thereafter the matter can proceed in accordance with law. Needless to state that if costs are not paid within a period of four weeks from today, the Trial Court to proceed in absence of the written statement of -5- the petitioners before me. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)