1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.315 OF 2010 Motiram Piraji Kawade & ors ..Petitioners V/s. Dagdu Rakhma Kawade & ors ..Respondents Mr.M.B.Kale i/b.Mr.U.B.Nighot, Advocate, for the Petitioners Mr.V.B.Tapkir, Advocate, for Respondent No.1 CORAM : A.S.OKA, J. DATE : 19TH APRIL, 2010 P.C. . On 20th January, 2010 notice for final disposal at admission stage was issued by this Court. The present Petition under Article 227 of the Constitution of India is filed by the original defendant Nos.1 to 4 and 9. The 1st Respondent is the original plaintiff. The 1st Respondent filed a Suit for partition and separate possession. The Petitioners were served with Suit summons on 27th June, 2008. An Order was passed by the Trial Court on 29th August, 2008 to proceed with the Suit without Written Statement of the Petitioners. 2 2. An application was made by the Petitioners at Exhibit 32 on 9th September, 2009 for setting aside the aforesaid Order to proceed with the Suit without Written Statement. A reply was filed by the 1st Respondent opposing the said application. It was stated in the reply that if the Court was inclined to allow the application, heavy costs may be imposed. By the impugned Order, the said application has been rejected on the ground that the Petitioner has not made out a case of existence of exceptional circumstances. 3. I have heard the learned Counsel appearing for the Petitioners and the learned Counsel appearing for the Respondents. 4. The Suit will be governed by mandate of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (Hereinafter referred to as the said Act). The Apex Court has held that the said provision fixing the outer limit for filing the Written Statement is directory in nature. However, the Apex Court held that time cannot be extended as a matter of course and the 3 Court can exercise power of extending the time provided the case of the existence of exceptional reasons and/or exceptional circumstances is made out. 5. Whether a case is made out of existence of exceptional circumstances depends on the facts and circumstances of each case. In the present case, the reason set out in the application is that for drafting the Written Statement, relevant documents were not available and therefore, Written Statement could not be filed within time limit provided by law. It was contended that only after the documents became available, the Written Statement was drafted. The Written Statement has been tendered on record along with application at Exhibit 32. 6. The learned Counsel appearing for the Petitioners invited my attention to the contents of the Written Statement. He pointed out that reliance has been placed in the proposed written statement on partition allegedly effected in the year 1955. In the Written Statement, the Petitioners have set out the factual aspects from the year 1952 onwards. The suit is of 4 the year 2008. The fact that the Petitioners desire to rely upon the events which have taken place from the year 1952 onwards, it is obvious that longer time was required for collecting documents. A case of existence of extraordinary circumstances was made out. The relevant documents were not available and the Written Statement could be drafted only after the documents became available. 7. In my view, the Trial Court ought to have allowed the application by directing the Petitioners to pay appropriate amount of costs to the 1st Respondent. Considering the facts and circumstances, the amount of costs is quantified at Rs. 5000/-. 8. Hence, I pass the following order. (i) The impugned Order dated 11th November, 2009 is quashed and set aside and the application at Exhibit 32 is allowed subject to condition of the Petitioners paying costs of Rs.5000/- to the 1st Respondent within a period of eight weeks from today. (ii) Deposit of the amount of costs with the Trial Court will be treated as sufficient compliance. (iii) If the Petitioners failed to pay costs of Rs. 5 5000/- within stipulated time, the impugned Order will stand. (iv) The Petition is allowed accordingly. (A.S.OKA, J.)