1 Wp no.4457/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.4457 of 2010 Avinand Bhagwan Khunte ... Petitioner versus Baban Savala Gaikwad & ors. ... Respondents ... Mr. P.B. Shah for the petitioner. CORAM : D.G. KARNIK, J. DATED : 23rd July 2010 P.C. 1. The petitioner challenges the order dated 15 February 2010 passed by the learned Civil Judge, Jr. Division, Wai, rejecting the petitioner’s application for condonation of delay in filing of the written statement. 2. Order 1 Rule 8 of the Code of Civil Procedure requires the defendant to file written statement within 30 days and the time can be extended upto 90 days. In the case of Kailash Vs. Nanku, AIR 2005 SC 2441, the Hon’ble Supreme Court has held that the provisions of Order 1 Rule 8 are directory but at the same time, the Hon’ble Supreme Court has cautioned that that does not mean that application for condonation of delay in filing the written statement be granted for asking. The Hon’ble Supreme Court clarified that time can be extended in exceptional cases and that too for reasons to be recorded in writing. It 2 Wp no.4457/10 has also held application for setting aside must be supported by an affidavit. 3. In the present case, written statement was sought to be filed 5 ½ years after the expiry of maximum period of 90 days permitted under Order 1 Rule 8. The explanation given for the delay is vague. It is only alleged that petitioner’s nephew was ill on account of heart disease and therefore, the petitioner could not file written statement. There are no details whether father of the nephew was not alive and was not treating the nephew. There is not even an averment that the petitioner the guardian of the nephew. There are no details about the alleged treatment given to the nephew nor is there anything on record to show that the illness was such that the petitioner could not even have given instructions for drafting of the written statement. Delay is gross of more than 5 years and in the absence of any satisfactory explanation, the trial Court committed no error in rejecting the application. 4. Learned counsel for the petitioner submitted that plaintiff had consented for taking the written statement on record by condoning the delay. I am unable to agree. I have read the say of the plaintiff in which he has strongly objected. Only in the last paragraph, he appears to have made an alternative request that in the event the Court was inclined to grant the prayer, compensatory costs may be imposed. This cannot in any way be construed as a consent and in the facts and circumstances even with the consent, the order could not have been set aside. Writ Petition is rejected summarily. (D.G. KARNIK,J.)