:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.6528 OF 2007 PETITION NO.6528 OF 2007 PETITION NO.6528 OF 2007 Late Kathod Arjun Patil through his L/Rs Smt. Usha Kathod Patil and others ..Petitioners V/s Baban Dehu Bhagat and others ..Respondents Mr P.J. Pawar for the petitioner Mr. Manoj P. Mhatre for respondent No.1 and 2 CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 2ND MAY, 2008 : 2ND MAY, 2008 : 2ND MAY, 2008 P.C. 1. Heard. Rule. Rule made returnable forthwith and heard finally. 2. This petition is filed taking exception to the order dated 8th June, 2007, whereby the application of the petitioners to condone the delay in filing the written statement, by setting aside the order dated 10th January, 2007 to proceed without written statement, came to be rejected. 3. The application is rejected essentially because though, the applicants had stated that the report of the Doctor is enclosed, the said report of the Doctor was not filed or produced at the time of :2: hearing of the application and the Trial Court has observed that no sufficient cause has been shown to condone the delay in filing written statement. The contention of the petitioners before the Trial Court was that the petitioner No.1 was sick since June 2006 until 18th February, 2007. The report of the Doctor has now been annexed to the petition at Exh. "D" wherein it is mentioned that the petitioner No.1 was suffering from hyperacidity, fever and joint pains and that she was under the treatment of the said Doctor from 15th June, 2006 to 18th February 2007. It is taken note of that the petitioners are the heirs and legal representative of the original petitioner. Petitioner No.1 is the widow of the original petitioner and at the relevant time when the written statement was to be filed, the petitioner Nos. 2 to 4 who are their children were minors. The learned Counsel for the petitioners relied upon the case of Kalubai s/o Madhavrao Upase V. Rangubai w/o Kalubai s/o Madhavrao Upase V. Rangubai w/o Kalubai s/o Madhavrao Upase V. Rangubai w/o Rajabhau Rajabhau Rajabhau Atole and others, Atole and others, Atole and others, reported in (2007 (3) Mah.L.J.624 and the case of Nandlal Vithaldas and Co. Nandlal Vithaldas and Co. Nandlal Vithaldas and Co. & Anrs V. Agricultural produce Mkt. Committee Anrs V. Agricultural produce Mkt. Committee Anrs V. Agricultural produce Mkt. Committee, reported in 2006 (2) AIR Bom. R. 134 and submitted that the time limit prescribed under Order 8 Rule 1 :3: of the CPC are directory and not mandatory and an opportunity ought to be given to the petitioners to file their written statement and contest the suit on merits. 4. The respondents have filed a reply opposing the petition mainly on the ground that sufficient cause is not made out to condone the delay in filing the written statement and that the certificate of the Doctor does not disclose such sickness, so as to prevent the petitioners from filing their written statement and that the Trial Court was right in rejecting the application of the petitioners. 5. In my view considering the facts and circumstances of the case, the Trial Court ought not to have been so hyper technical so as to non suit the petitioners. In my view substantial justice is required to be done and the suit is required to be heard on merits instead of the respondents scoring a technical knock out in the suit. Considering the facts of the case, particularly, the fact that the petitioner No.1 is a widow and the petitioner Nos. 2 to 4 were minors at the relevant time, the Trial Court :4: ought to have shown some indulgence on that count and the peculiar facts of the case would come under the umbrella of exceptional circumstances so as to condone the delay. The Doctor’s certificate which was not produced at the relevant time when the application is decided, is now annexed to the petition. Moreover, the Trial Court ought to have considered that applications were made from time to time to extend the time to file written statement and it cannot be said that the petitioners were negligent. 6. In my view, the facts of the case would fall within the expression ‘exceptional circumstances’ and interest of justice would be met by condoning the delay in filing written statement by imposing costs. I accordingly set aside the impugned order and condone the delay in filing the written statement and direct the Trial Court to take written statement of the petitioners on record. The respondents are permitted to withdraw the amount of Rs. 3000/- deposited by the petitioners in the Trial Court as costs. Written statement to be filed on or before 10th of June, 2008. The respondent Nos. 1 and 2 may file fresh/ additional affidavit of evidence in the :5: Trial Court, if so desire. 7. The writ petition is disposed of and rule made absolute in the aforesaid terms. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)