1 WP 5233/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5233 OF 2010 Smt. Sunanda Kishor Hatkar & Anr. .. Petitioners V/s Kausari Abdul Sattar Fatakare .. Respondent Mr. Nitin Mulye for the petitioners. CORAM : D.G. KARNIK, J. DATE : 3RD AUGUST 2010 P.C. : 1. Heard. 2. By this petition, the petitioners challenge the order dated 6 February 2010, passed by the learned Civil Judge, Junior Division, Mangaon, refusing permission to the petitioners (original defendants) to file additional written statement. 3. In a suit filed by the respondent, the defendants appeared and filed their written statement on 25 November 2002. On an application by the original plaintiff, the Court allowed the plaintiff to amend the plaint. The plaint was amended some time in the year 2008 and a copy of the amended plaint was served on the 2 WP 5233/10 petitioners in November 2008. Within a period of 30 days of the service of the amended plaint and even within the maximum permissible period of 90 days provided under Order 8 Rule 1 of the Code of Civil Procedure (for short “the Code”), the petitioners did not file any additional written statement to the amended plaint. Therefore, by an order dated 22 June 2009 the Court directed the suit to proceed without any additional written statement. On 15 September 2009, the petitioners sought to file the additional written statement along with an application for condonation of delay in filing the written statement. By the impugned order, that application was rejected. 4. Under Order 8 Rule 1 of the Code, a defendant is required to file the written statement within 30 days of the service of summons. The Court is empowered to extend the time for filing the written statement for a maximum period of 90 days for sufficient cause. It is no doubt true that in Kailash v. Nanhku, AIR 2005 SC 2441, the Supreme Court has held that the provisions of Order 8 Rule 1 of the Code are directory but, at the same time, cautioned that the Court should not go on extending the time to file the written statement so as to make the very provision of Order 3 WP 5233/10 8 Rule 1 of the Code nugatory and/or take away the life of the provision. The delay can be condoned in exceptional cases only for a good cause and the reasons for condoning the delay must be recorded in writing. 5. In the present case, the delay was sought to be explained by stating that the advocate did not prepare the written statement in time and secondly by contending that the petitioner no.2 had suffered a fracture on 25 June 2009 and was under treatment till 30 July 2009. It was further stated that the petitioner no.1 was also ill from 1 August 2009 till 15 August 2009. Medical certificates for petitioner nos.1 and 2 were filed on record. Even if it is assumed that petitioner no.2 suffered a fracture in the leg and he was unable to move, this happened only on 25 June 2009. The maximum period of 90 days permitted under Order 8 Rule 1 of the Code expired some time in February 2009 and there is no satisfactory explanation for the delay between February 2009 and 25 June 2009 qua the petitioner no.2 and from February 2009 to 31 July 2009 qua the petitioner no.1. There is no explanation whatsoever qua the petitioner no.3. The statement that the advocate of the petitioners was ill and was infirm and did not 4 WP 5233/10 prepare the written statement is too vague a statement bereft of any details. No particulars have been mentioned when the petitioners approached the advocate when he called them for instructions and because of which infirmity the advocate could not prepare the written statement so long. No affidavit is filed in support of the application, especially about the infirmity of the petitioners’ advocate was filed. 6. In the circumstances, there is no merit in the writ petition which is rejected summarily. (D.G. KARNIK, J.)