1 wp 9773-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9773 OF 2010 Dhirajlal Raishi Chheda ...Petitioner vs. Shri Mukesh Raishi Chheda ...Respondent Mr.I.R. Tripathi i/b. M/s.Sarwankar & Co. for the Petitioner. Mr.Jitendra Shukla i/b. M/s.G.H. Shukla & co. for the Respondent. CORAM : B.R. GAVAI, J. DATED : JANUARY 13, 2011 P.C :- 1 By way of present petition, the petitioner challenges order dated 10th November, 2010 vide which the defendant no.1 was directed to submit his written statement on 1st December, 2010. 2 The learned Counsel for the petitioner submits that the learned trial court has grossly erred in allowing the written statement to be filed after a period of eight and half years. It is 2 wp 9773-2010 further submitted that the trial Court has granted leave to file written statement without there being an application for condonation of delay. The learned Counsel for the petitioner places reliance on the judgment of the Apex Court 2009 Mohammed Yusuf vs. Faiji Mohammad & Ors., reported in 2009(2) ALL MR 486. 3 Admittedly, the present suit has been filed on 11th March, 2002. The amendment to Order 8 Rule 1 of the CPC has been effected from 1st July, 2002. As such, the present suit would not be covered by the amended provisions of CPC but by the unamended provisions which reads thus :- " Defendant no.1 shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. It can, thus, be seen that since the present suit is covered by the unamended provisions, the amended provisions which require the written statement to be 3 wp 9773-2010 filed initially within thirty days and subsequently, for the reasons to be recorded in writing, even 90 days would not apply to the present suit. As per the unamended provisions, the written statement could be filed within such time as the Court permits the defendant to file the same. In the present case, the written statement has been permitted to be filed on 1st December, 2010 by the impugned order. The learned Counsel for the defendant makes a categorical statement that the written statement is already filed. 4 In so far as the judgment of the Apex Court in the case of Mohammed Yusuf vs. Faiji Mohammad & Ors. the learned Counsel for the petitioner relies, it is clear that the Apex Court was considering the provisions of Order 8 Rule 1 as amended in 2002. Admittedly, the present suit could not be governed by the amended provisions and as such the said judgment, in my considered view, would not be of any assistance to the given case. Apart from that, the 4 wp 9773-2010 dispute between the parties is a family dispute. The plaintiff and the defendant are real brothers. I, therefore, find that in the interest of justice, it is just that the dispute between the parties is settled on merits. 5 Petition, therefore, is found to be without any merit and as such, dismissed. (B.R. GAVAI, J.)