1 WP No.9040/03 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9040 OF 2003 Shankar Baban Mahadik & Anr. ... Petitioners. V/s. Shankar Bhimrao Gaikwad & Anr. ... Respondents. --- Mr. N.P.Shimpi for the Petitioners. --- CORAM : D.G. KARNIK, J DATED : 08th July 2011 P.C. 1. Petitioners are the original plaintiffs. They filed the suit against the respondents bearing R.C.S No. 471 /2000 in the Court of Civil Judge, Jr. Division, Malshiras. In the suit, the defendants did not file written statement and hence, the court directed the suit to proceed without their written statement. By an application dated 10th November, 2003, the defendants through their Advocate applied for setting aside of the “No written statement” order and for permission to file written statement. By the order dated 18th November, 2003 the application was allowed. That order is impugned in the present petition. 2 Learned counsel for the petitioners submitted that the written statement is required to be filed within the period of 90 days and 2 WP No.9040/03 after expiry of period of 90 days from service of summons, the defendants are not entitled to file written statement in view of the provisions of Order 8 Rule 1 of the Code of Civil Procedure. Order 8 Rule 1 was amended by Amendment Act of 2002 w.e.f. 1st July, 2002. The suit was instituted in the year 2000 i.e. prior to the coming into force of the Amendment Act,2002. As such the amended provision was not applicable to the suit. 3 The trial court has exercised its discretion in setting aside the written statement order. I see no reason to interfere in the discretion exercised by the trial court especially when the order does not cause any prejudice to the petitioners. The petitioners have been compensated by awarding costs for setting aside “No WS” order. On the other hand if the application was to be rejected, injustice could be caused to the defendants/respondents as they would not be able to put up their defence. 4 There is no merit in the petition, which is hereby rejected. (D.G.KARNIK, J)