(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7174 OF 2009 Anjanabai wd/o. Khandu Wadhe, Age : 53 years, Occupation : Nil, .. Petitioner R/o. Shahpur, Taluka : Jamner, (Original District : Jalgaon. defendant no.5) versus 1. Sow. Parwatabai w/o. Girdhar Nikam, Age : 63 years, Occupation : Agriculture & Household, R/o. Indira Aawas Nagar, Jamner, District : Jalgaon. 2. Shri Amrut Supdu Surwade, Age : 53 years, Occupation : Agriculture & Service, R/o. Girja Colony, Jamner, District : Jalgaon. 3. Sow. Narmadabai w/o. Shenfadu Sandhyan, Age : 68 years, Occupation : Agriculture & Household, R/o. Shahpur, Taluka : Jamner, District : Jalgaon. 4. Shri Bhiwa s/o. Supdu Surwade, Age : 58 years, Occupation : Agriculture, R/o. Shahpur, Taluka : Jamner, District : Jalgaon. (2) 5. Sow. Sumanbai w/o. Bhiva Surwade, .. Respondents Age : 53 years, (No.1 - Original Occupation : Household, plaintiff & R/o. Shahpur, Taluka : Jamner, Nos.2 to 4 - District : Jalgaon. Original defendant nos.1 to 4 ) .......................... Mr. A.M. Gholap, Advocate, for the petitioner. Mr. G.V. Wani, Advocate, for respondent no.1. .......................... CORAM : B.R. GAVAI, J. DATE : 26TH NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner challenges the order dated 5th August 2009, passed by the learned Civil Judge (Junior Division), Jamner, below Exhibit 58 in Regular Civil Suit No. 108/2006, thereby rejecting the application filed by the present petitioner for setting "No written statement" order. 2. The respondent plaintiff has filed a suit for partition, separate possession and perpetual injunction. In the said suit, the petitioner after (3) receipt of suit summons, put his appearance on 7th October 2006. Since the written statement was not filed till 13th December 2006, after completion of 90 days after the date of receipt of suit summons, "No written statement" order was passed. However, inadvertently the date came to be typed as 13th December 2007. An application came to be filed on 13th April 2009 for setting aisde "No written statement" order and for permission to place written statement on record. The said application was resisted by the plaintiff. Vide order impugned herein, the application came to be rejected. Hence, the present petition. 3. Mr. A.M. Gholap, learned Counsel appearing for the petitioner, submits that the learned Judge of the trial court has grossly erred in rejecting the application. He submits that if written statement is taken on record, the issues would not be required to be re-framed and, as such, no prejudice would be caused to the respondent plaintiff. He further submits that in view of Section 35B of the Code of Civil Procedure, 1908, if it is found that there is some delay in filing the written statement, costs could be imposed for such a delay. 4. The Apex Court in the case of Kailash Vs. Nanhku and others (2005 AIR SCW 2346), while considering the amended provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, has held that the written statement would be required to be filed within a period of 30 days from the date of receipt of suit summons. The court can also permit to file written statement within a period of 90 days from the date of receipt of suit summons, for the reasons to be recorded by the court. The Apex Court has further held that though the words used in (4) Order VIII Rule 1 of the Code of Civil Procedure are couched in a negative manner, which state that after a period of 90 days, the defendant shall not be permitted to place written statement on record, the provisions are not mandatory but directory. It has been held that even after a period of 90 days, the court does not lose jurisdiction to take written statement on record. However, it has been held that refusal to take written statement on record after a period of 90 days from the date of receipt of suit summons, is a rule and departure therefrom is an exception. It has been further held that unless compelling and exceptional case is made out by the party, it would not be permissible for the court to permit defendant to place written statement on record, after a period of 90 days from the date of receipt of suit summons. 5. In the present case, according to the petitioner, her husband was suffering from heart ailment one and half months prior to the date on which "No written statement" order came to be passed and that he died on 27th December 2007 and after his death, she was in a mental shock and, therefore, could not file an application earlier. 6. It can thus be clearly seen that when "No written statement" order was passed i.e. on 13th December 2006, there was no reason for filing written statement prior to that date. The husband of the petitioner had died after a period of one year therefrom. Further it is to be noted that even from 27th December 2007, the petitioner has waited for a period of one year and four months to file an application for setting aside "No written statement" order. (5) 7. In that view of the matter, it cannot be said that the petitioner has made out an exceptional or compelling case for accepting the written statement beyond the period of 90 days from the date of receipt of suit summons. It can further be seen that the learned Judge of the trial court has given cogent and sound reasons while rejecting the application. 8. No perversity could be found with the approach adopted by the learned Judge of the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 9. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp7174