1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2237 OF 2008. Umakant S/o Yeshwanr Rokade, since deceased through his L.Rs. 1) Anuradha W/o Umakant Rokade, Age 54 years, Occ.Household, R/o Building No.128, Room No.4545, 5th floor, New Tilak Nagar,Chembur, Mumbai-400 089. 2. Sachin S/o Umakant Rokade, Age 35 years, Occ.Printing Business, R/o as above. 3. Chjirag S/o Umakant Rokade, Age 33 years, Occ.and R/o as above. ... Petitioners. Versus 1. Vijay S/o Kondiram Rokade, Age 44 years, Occ.Service, R/o Thana Lokmanya Nagar No.4, Besides Mauli Kirana Stores, Thana No.6. 2. Sanjay S/o Kondiram Rokade, Age 40 years, Occ.& R/o as above. 3. Dhananjay S/o Kondiram Rokade, Age 37 years, Occ.& R/o 2 as above. 4. Bharat S/o Zumbar Andhale, Age 32 years, Occ.Agriculture, R/o Village Karjule Haria, Taluka Parner, Dist.Ahmednagar. 5. Santosh S/o Maruti Andhale, Age 31 years, Occ. & R/o as above. ... Respondents. ... Mr.Rajendra Deshmukh, advocate for the petitioners. Respondents served - absent. ... CORAM : V.R.KINGAONKAR,J. Date : 19.01.2010. PER COURT 1. Rule, Rule made returnable forthwith and heard finally. 2. This petition arises out of order dated 13.12.2007, rendered by learned 2nd Joint Civil Judge (S.D.), Ahmednagar, whereby application filed by Respondent Nos.1 to 3 seeking leave to file their written statement in suit (Spl.C.S.No. 254/1998) was allowed subject to costs of Rs. 1,000/- (Rupees one thousand). 3 3. The petitioner is original plaintiff who filed the suit for specific performance of an agreement of sale. The original defendant Nos.4 and 5, who are Respondents Nos.4 and 5 herein, entered into compromise with the petitioner. The Respondent Nos.1 to 3 did not file their pleadings inspite of service of summons. It appears that their earlier application was granted by the learned Civil Judge (S.D.) vide order dated 27.6.2005. They had submitted such application dated 16.4.2005, seeking leave to file written statement in the suit, alleging that they came to know about the suit proceedings when the petitioner had objected mutation entry in pursuance to the agreement of sale executed by them. It is pertinent to notice that they had clearly stated in the said application, which was filed at Exh.66, that they had received the suit summons but due to lack of legal knowledge, they could not immediately take decision to approach the Court. Against the order rendered by the learned Civil Judge on 27.6.2005, the petitioner had filed Writ Petition in this Court vide W.P.No.6480/2005. This Court allowed the Writ 4 Petition and directed the trial Court to reconsider the request of the Respondent Nos.1 to 3 on merits. Thereafter, the application was considered by the learned Civil Judge (S.D.) after giving opportunity of hearing to both the sides. The application was allowed vide the impugned order. 4. Heard learned counsel Mr.Deshmukh, for the petitioners. Though served, none of the Respondent has appeared. The Respondents seem to have continued with their habit of remaining absent notwithstanding service of the summons/notice as was done by them in the trial Court. It is worthy to be noted that the Respondents were put on notice that the petition was likely to be disposed of at the stage of admission as is made clear vide order dated 16.3.2009, rendered by learned Single Judge (Hon'ble Shri Justice R.M.Borde). 5. The suit was filed on 22.6.1998. The Respondent Nos.1 to 3 had appeared in the suit through their counsel on 11.8.1998. They 5 submitted various adjournment applications which were granted by the trial Court on six (6) occasions up till 16.2.1999. The written statement ought to have been filed within a period of 90 (Ninety) days from the date of first appearance i.e. 11.8.1998 but that period had already elapsed when the 4th application was granted. It appears that inspite of there being absence of sufficient cause to grant further time for filing of the written statement, again 5th application dated 4.1.1999 was granted by the trial Court. Similarly, without assigning sufficient reasons again on 6th occasion such application was granted on 16.2.1999. The casual approach adopted by the learned Civil Judge (S.D.), needs to be deprecated. 6. The clinching question is whether the Respondent Nos.1 to 3 had shown sufficient cause which refrained them from filing of the written statement within reasonable period of 90 (ninety) days. The application (Exh.66) does not show any tangible reason except and save a bald statement that they were not having knowledge of 6 law and could not decide further course of action. This statement also is rather without any foundation. They stated in the said application (Exh.66) that they had not appeared in the suit on the scheduled date. Obviously, it is not a correct statement because they had already appeared through the counsel on 11.8.1998. It is but natural that their counsel had made them aware of the nature of the suit and the allegations made by the petitioner in the context of the prayer for specific performance of the agreement of sale. The allegation that they were not having legal knowledge and, therefore, they could not decide properly what was to be done is incorrect and improper. 7. The learned Civil Judge had passed order dated 16.4.2005 to proceed without written statement of the Respondent Nos.1 to 3. Grant of time for more than 90 (ninety) days is not permissible unless the conditions enumerated in order VIII Rule 1 of the C.P.Code are satisfied. The right to file written statement is only to the extent of first 30 days from the date of 7 service of summons. Thereafter it can be extended up to 90 (Ninety) days by reasoned order. The further extension of time is of-course impermissible unless there is a strong case made out by the concerned defendant to show that due to sufficient reasons the written statement could not be filed within the period of 90 (ninety) days. In other words, the discretion available to the Civil Court is restricted after the grant of 90 (ninety) days period from the date of service of the summons and unless there is a good and valid reason shown, such time can not be extended. The learned Civil Judge failed to notice the conduct of the Respondent Nos.1 to 3 and their averment in the application as regards nature of the cause for the delay in proper perspective. The learned Civil Judge observed : "In the application, it is mentioned that due to illiteracy of legal knowledge and inability to take decision within time, the defendants have not filed W.S. According to me, illiteracy of legal knowledge 8 would be the proper ground for not appearing in the Court." As stated before, the Respondent Nos.1 to 3 had appeared before the Court through their counsel and there was no question of their lack of knowledge regarding the nature of the suit. The learned Civil Judge accepted the statement made in the application as if it was a gospel truth. The veracity of the statement was not counter checked with the record. In fact, there was no tangible reason shown to grant the leave for filing of the written statement. The impugned order does reflect non-application of judicial mind to the fact situation of the case. 8. The Apex Court in "M/s Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. and others" 2007 AIR SCW 2311, approved the parameters set out in "Kailash Vs. Nanhku and others" (2005) 4 SCC 480. It is held in the given case that the extension of time shall be only by way of exception. It is further held that in no case shall the defendant be permitted 9 to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. 9. Considering the foregoing reasons, the impugned order is quite perverse and unsustainable and as such is liable to be interfered with. Hence, the petition is allowed. The impugned order is set aside. The application of the Respondent Nos.1 to 3 be deemed as dismissed. No costs. 10. The final hearing of the suit shall be expedited by the trial Court and the same shall be completed within a period of nine (9) months as far as possible. 11. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp223708