: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.888 OF 2009 Manju Prem Sood ... Appellant V/s. Pushpa T. Parekh & Ors. ... Respondents Mr.Prem Sood i/b S. Malik for Appellant Mr.S.B. Jadhav i/b M/s.R.S. Sharma for Respondent Nos.1 to 4 CORAM: SMT.NISHITA MHATRE, J. DATED: JANUARY 14, 2010 P.C.: 1. The appeal from order has been preferred against the order dated 7.8.2009 by which the City Civil Court has allowed the Motion filed by the defendants and condoned the delay in filing the written statement, subject to payment of costs. 2. According to the learned advocate for the appellants, the delay is of 220 days and not of 190 days which has been condoned by the Court. He submits that the defendants had not mentioned the number of days of delay in their notice of motion for condoning the delay. The learned advocate points out that it was the trial Court who calculated the number of days of delay suo motu and has held that the delay is of 190 days. The learned advocate further submits that the trial Court had no reason to condone the delay as no explanation was put forth by the defendant for the delay. : 2 : He further submits that the defendants are expected to file a written statement within 30 days of the writ of summons being served on them. If it is not filed within that period the Court has powers to condone the delay of 90 days if exceptional circumstances are established by the defendants before the Court. He submits that under Order 8 Rule 1, the Court has no powers to condone the delay of 220 days. 3. Undoubtedly under Order 8 Rule 1, the written statement must be filed within 30 days of the receipt of the writ of summons by the defendants. An additional period of 90 days is permissible for the defendants to file their written statement provided exceptional circumstances are made out by the defendants for filing the written statement belatedly. However, it is now well settled that even after the amendment Act of 1999 which came into force from 1.7.2002, the Supreme Court has in various decisions held that the trial Court may in exceptional circumstances, for the reasons to be recorded in writing, take the written statement of the defendant on record even beyond the period of 90 days referred in the proviso to Rule 1 of Order 8. The Supreme Court observed in various judgments that the provisions of Order 8 Rule 1 spells out a disability for the defendants; it does not impose an embargo on the power of the Court to extend the time for filing the written statement. The Supreme Court has further observed that the provision being directory and not mandatory the power of the Court to extend the time has not been taken away by the provisions of Order 8 Rule 1 of the Civil Procedure Code. 4. The trial Court has considered various judgments of the Supreme Court relied on by the parties and has held that the delay can be condoned. The trial Court has believed the affidavit filed by the defendants that because of the negligence of their : 3 : advocate, the written statement was not filed and an order directing “no w.s. herein” was passed. Whether to condone the delay or not is a discretionary order passed by the trial Court. The order does not indicate that there was any perversity on the part of the trial Court in condoning the delay. 5. An affidavit has been filed by respondent No.2 being the constituted attorney of Respondent Nos.1,3 and 4. He has stated that he was not in India for two months and, therefore, could not instruct the Defendants’ advocate. He has further stated that the notice of motion was filed on 20.7.2009 because of the absence of Respondent No.2 and negligence of their advocate. 6. All these factors have been taken into account by the trial Court while condoning the delay and accepting the written statement on record. The trial Court has calculated the delay after the 30 days period was over from the date of the writ of summons being served upon the defendants. Therefore, obviously the delay would be 190 days. Hence, the appeal from order is dismissed. 7. In view of the dismissal of the appeal from order, Civil Application No.1091 of 2009 does not survive and the same is dismissed accordingly.