1 (WP 323 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 323 OF 2011 Abbasiya Mumusafirkhana Trust and Ors. ...Petitioners Vs. Mrs. Ashrafbai Shamsuddin Nathani ...Respondent ----- Mr. Amogh Paralikar for Petitioners Mr.Venkatesh A. Shastry for Respondent. ----- CORAM: V.M. KANADE J. DATED: 7th June, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioners and the learned counsel appearing on behalf of the Respondent. 2. The Petitioners are aggrieved by an order passed by the Division Bench of the Small Causes Court in the revision application filed by the Respondent herein. By the said order dated 7.9.2010, the Revisional Court was pleased to allow the revision application and was pleased to direct the Trial Court to permit the Respondent herein to file her written statement. 3. Brief facts of the case are that the Petitioners had filed a suit for eviction against the Respondent-tenant on various grounds. The writ of summons was served in December, 2009. Since the written statement was not 2 (WP 323 of 2011) filed within a period of limitation as prescribed under Order 8 Rule 1 of CPC, the Trial Court directed that the suit should proceed without the written statement. The Respondent, initially filed an application for setting aside the said order and in the said application, it was stated that the written statement could not be filed since talks of settlement were going on between the parties. This application was not pressed and immediately within a week, on 2nd May, 2010, a second application for setting aside of the impugned order was filed and in the said application, a new ground was taken that on account of ill-health of the Respondent, she could not file the written statement as she could not give instructions to her advocate. The Trial Court dismissed the said application. Being aggrieved by the said order, the Respondent preferred a revision application before the Division Bench of the Small Causes Court. A preliminary objection was raised by the Plaintiff-Petitioner herein regarding maintainability of the revision application. Reliance was placed on the judgments of the Learned Single Judge of this Court in the case of J.M. Constructions vs. Rustom P. Patel (Dr.) & ors. [2008 (5) Bom.C.R. 598] and also on a judgment of another Learned Single Judge of this Court in the case of Abeda Iqbal Patel vs. Cormorant Investment Pvt. Ltd., Mumbai 3 (WP 323 of 2011) [2009(2) Mh.L.J. 446]. The Revision application, however, allowed. Reliance was placed by the Revisional Court on a judgment of the Apex Court in the case of Zolba v/s. Keshao AIR 2008 SC 2099 and Kailash v/s. Nanhku and R.N.Jadi & Brothers v/s. Suhashchandra [20070 6 Supreme Court Cases 420]. 4. The learned counsel appearing on behalf of the Petitioner submitted that in view of the judgments of the Learned Single Judge of this Court, the revision application was not maintainable and the Lower Court, therefore, erred in not dismissing the revision application on that ground. 5. In my view, so far as the question of maintainability is concerned, the revision application, in my view, was maintainable since the substantive right of the Respondent was affected by the impugned order and, therefore, it could not be said that the order dismissing the application for setting aside the impugned order was a procedural order. The Division Bench of this Court in the case of Sukhdev Prasad Raghubir vs. Rambhujarat Kshamapati @ Rambhujarat Chhampati [1983 Mh.L.J. Page 9] has in terms held that only in cases where the substantive rights of the parties are not affected, revision against such an order could not be maintainable. The order of the Division Bench is binding 4 (WP 323 of 2011) on this Court. Apart from that, the Apex Court has in terms held that the provisions of Order 8 Rule 1 are not mandatory but are directory and the Lower Court was justified in relying on those judgments while rejecting the preliminary objection raised by the Plaintiff. 6. So far as the order on merits is concerned, the Lower Court has exercised the discretionary powers vested in it and has given cogent reasons while setting aside the order passed by the Trial court. The Respondent has stated in her application that she was suffering from number of ailments and secondly, it was also argued that the settlement talks were going on. The Lower Court has accepted this explanation and has, therefore, set aside the impugned order. In my view, no case is made out for interfering with the impugned order passed by the Lower Court while exercising jurisdiction under Article 227 of the Constitution of India. Writ Petition is, therefore, dismissed. 7. The hearing of the suit however, expedited. The Trial Court shall dispose of the suit as expeditiously as possible and, in any case, within a period of one year. (V.M. KANADE J.)