1 W.P No.2018/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2018 of 2010 Suresh Maruti Ambavale ... Petitioner versus Kaluram Labaji Ambavale & ors. ... Respondents ... Mr. A.B.Tajane for the petitioner. Mr. S.P. Thorat for the respondents CORAM : D.G. KARNIK, J. DATED : 14th July 2010 P.C. 1. Rule, returnable forthwith. Mr.Thorat waives service of Rule for respondent nos.1 to 4. Respondent nos.5 to 10 are formal parties in as much as they are the original co-defendants along with the petitioners. Hence, service of Rule on respondent nos.5 to 10 is dispensed with. Taken up for hearing by consent of the parties. 2. This petition is directed against the order dated 8 January 210 passed by the Civil Judge, Jr. Division, Saswad rejecting the petitioner’s application for condonation of delay for filing of the written statement and for setting aside “no written statement” order. The petitioners are 2 W.P No.2018/10 the defendants. Respondent nos.1 to 4 are the original plaintiffs. They filed a suit bearing Regular Civil Suit no.210 of 2008, against the petitioner and respondent nos.5 to 10 for partition of the suit property. The petitioners did not file the written statement within 90 days of service of summons and consequently the trial court rejected the application for extension of time to file written statement and directed the suit to proceed without their written statement by an order dated 10 July 2009. On 28 August 2009, the petitioners tendered the written statement along with an application to condone the delay in filing of the written statement and also prayed for setting aside the “no written statement” order. That application was rejected by an order dated 8 January 2010. Aggrieved petitioners are before this court. 3. In Kailash vs. Nanku AIR 2005 SC 2441, the Supreme Court has held that the provisions of Order 8 Rule 1 are not mandatory but are directory. Of course, the Supreme Court has further held that that does not mean that the court can exercise the power of extending the time for filing of the written statement beyond 90 days lightly. The discretion to extend the time must be exercised judicially and by putting the defendant to terms including imposition of compensatory costs. In the present case, in my view, petitioner had given adequate reasons for the delay in filing of the written statement. The suit is for partition of the property. Admittedly, petitioner and respondents are relatives and lineal descendants of a common ancestor. Old revenue records and family papers were required to be seen before filing of the written statement. Consequently, there was delay in filing of the written statement. In the facts and circumstances of the case, in my view, the delay ought to be condoned subject to payment of compensatory costs 3 W.P No.2018/10 as held by the Hon’ble Supreme court as held in the case of Kailash Vs. Nanku (supra). 4. For these reasons, writ petition is allowed. Impugned order is set aside and the written statement tendered by the petitioner is directed to be taken on record by setting aside the “no written statement order”. The petitioner however shall pay to the respondents Rs.20,000/- as compensatory costs which shall be deposited in the trial court within four weeks with liberty to the plaintiffs to withdraw the same. If the costs are not deposited within four weeks, Rule shall stand discharged and writ petition shall stand dismissed. 5. Petitioner shall pay costs of Rs.5,000/- as costs of this petition to the respondent nos.1 to 4. The amount of Rs.5,000/- deposited in this court towards costs of this writ petition be paid to the respondent nos.1 to 4. (D.G. KARNIK,J.)