1 wp1366.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 1366 of 2011 M/s. Sanghvi Premises (P) Ltd. ...Petitioner v/s. Mr. Ramesh B. Thakur ...Respondent Dr. Birendra Saraf with Pooja Kshirsagar i/b. I.C. Legal for the petitioner. Mr. Anil Singh for the respondent. CORAM:- B.R. GAVAI, J DATED :- FEBRUARY 14, 2011. P.C. Rule. Rule made returnable forthwith. 2. By consent of parties, taken up for final hearing. 3. By way of present Petition, the Petitioner challenges the order dated 16th December, 2010 vide which the Notice of Motion No. 1766/2010 taken out by the present Petitioner-defendant for condonation of delay in filing written-statement came to be rejected. 2 wp1366.11.sxw 4. The Petition arises out of peculiar facts and circumstances. The Respondent-plaintiff filed a suit being SC Suit No.1893 for easement rights. In the said suit undisputedly the suit summons were received on 15th October, 2009. It appears that upto 20th February, 2010 the report of service to the petitioner-defendant was not placed on record by the plaintiff and accordingly matter came to be adjourned to 7th April, 2010. On 7th April, 2010 the Petitioner appeared and sought time for filing written- statement. The Learned Trial Judge observed that since even upto that date, the plaintiff had not placed on record the proof insupport of service to the defendant and adjourned the matter to 6th May, 2010 for filing written- statement. On the next day i.e. 6th May, 2010, the Learned Trial Judge permitted the defendant-petitioner to file written-statement and also marked it as Exhibit 8 and matter was adjourned to 8th July, 2010. It appears that subsequently the Counsel for the plaintiff appeared in the Court and submitted that since the written-statement was filed beyond a period of 90 days, it could not have been taken on record. The Learned Judge accepting the contention of the plaintiff found that technically the written-statement could not have been taken on record and as such de-exhibited the written statement which was already exhibited. Since the Petitioner found that 3 wp1366.11.sxw written-statement could not be placed on record on account of technical non-compliance, he filed a Notice of Motion as aforesaid for condonation of delay in filing written-statement. The same is rejected. 5. Shri Saraf the Learned Counsel appearing on behalf of the Petitioner submits that when the Learned Trial Judge himself vide order dated 7th April, 2010 has granted time to file written-statement till 6th May, 2010, the delay, if any, prior to 7th April, 2010 automatically stood condoned and as such the Learned Judge ought to have allowed the Application. Shri Singh, the Learned Counsel appearing on behalf of the Respondent-plaintiff vehemently opposed the Application. He submits that no ground even worth name sake are given in the Application for condonation of delay. He submits that only ground given is defendant is developer and as such could not file written-statement within a stipulated period as he was required to go to various places. 6. The Petition is required to be entertained taking into consideration the peculiar facts and circumstances. Undisputedly, till 7th April, 2010 the plaintiff himself had not placed on record material to support the service of notice to the defendant. Taking into consideration this peculiar fact, the 4 wp1366.11.sxw Learned Judge himself granted time till 6th May, 2010 to file written- statement. Not only that but on the same day the Learned Judge permitted the written-statement to be taken on record and also marked it as Exhibit 8. I find that after marking exhibit to the written-statement, the Learned Judge in normal circumstances ought not to entertained a oral request made by the plaintiff for de-exhibiting the same. 7. Be that as it may, since the Learned Judge himself has found that technically the written-statement could not have been taken on record, after the Petitioner had removed the technical hindrance of filing a formal application for condonation of delay, the Learned Judge in the peculiar facts, ought to have condoned the delay. 8. Nodoubt that the provisions of Order VIII Rule-1 of CPC require that written-statement should be filed within a period of 30 days from the receipt of suit summons and for the reasons to be recorded by the Learned Judge in writing within a period of 90 days from the date of receipt of suit summons. However, by now it is settled position of law that said provisions are directory and not mandatory. The Court in the given circumstances and when case made out by the defendant can permit the written-statement to 5 wp1366.11.sxw be taken on record even after a period of 90 days. It is further a settled principal of law that procedural laws are handmade of substantive justice. In the present case the written-statement is already permitted to be taken on record, after the Learned Judge was satisfied that plaintiff had not placed on record the material, to establish the service on the defendant and had granted time till 6th May, 2010 to file written-statement. The defendant having filed the written-statement on the same date i.e. 6th May, 2010, the Learned Judge has also permitted the same to be taken on record and exhibited the same. Insofar as the technical lacunas are concerned, the same were also removed by the petitioner by filing the formal Application. Insofar as the prejudice that could have been said to be caused to the defendants, if any, the same could be compensated in the monetary terms. 9. In that view of the matter, I am inclined to allow the Petition. The impugned order dated 16th December, 2010 is quashed and set aside. Notice of Motion No. 1766/2010 is allowed. The delay in filing the written- statement is condoned and written-statement is directed to be taken on record. However, the same shall be subject to the cost to be payable to the plaintiff by the defendant which are quantified at Rs. 15,000/-. The cost to be deposited by the defendant in the Trial Court within a period of two 6 wp1366.11.sxw weeks from today. On deposit of cost the plaintiff would be entitled to withdraw the same. 10. Rule made absolute in the aforesaid terms. No order as to costs in the present proceedings. (B.R. GAVAI, J)