(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7958 OF 2009 Oriental Insurance Co. Ltd., Dhule Branch, through the Divisional Office, Aurangabad, Through its Divisional Manager, Aurangabad. .. Petitioner. versus 1. Bondlya s/o. Gimblya Mawachi, Age : 55 years, Occupation : Nil, R/o. Ambedkar Chowk, Navapur, Dist. Nandurbar. 2. Pragatsingh s/o. Karnalsing Pabla, Age : Major, Occupation : Business, R/o. 821, GIDC, Ranoli, Wadodara, Dist. Wadodara (Guj.). .. Respondents. .......................... Mr. A.G. Kanade, Advocate, for the petitioner. .......................... (2) CORAM : B.R. GAVAI, J. DATE : 26TH NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner challenges the order dated 16th June 2009, passed by the learned Member of the Motor Accident Claims Tribunal, Nandurbar, below Exhibit 16 in M.A.C.P. No. 163/2008, thereby rejecting the application filed by the petitioner for setting aside "No written statement" order. 2. From the record, it is clear that the suit summons were received by the petitioner on 26th December 2008. Pursuant to the said date, the petitioner had put in its appearance on 29th January 2009. Since written statement was not filed, an order of "No written statement" came to be passed on 5th May 2009. Subsequently, an application for setting aside the said order and permission to place written statement on record, came to be filed on 16th June 2009. By the order impugned in the petition, the same is also rejected. Hence, the present petition. 3. Mr. A.G. Kanade, learned Counsel appearing for the petitioner, submits that the written statement could not be filed within the stipulated period since the Counsel for the petitioner had received the papers in the Summer Vacation. He, therefore, submits that in the interest of justice, the written statement ought to have been permitted to be taken on record. He submits that in so far as prejudice that is caused to the other side is concerned, that can be compensated by saddling costs. (3) 4. After amendment to the Code of Civil Procedure, 1908, in 2002, the amended provision under Order VIII Rule 1 requires that the written statement has to be submitted within a period of 30 days from the receipt of suit summons. However, the court can permit the defendant to take written statement on record within a period of 90 days from the date of receipt of suit summons. The provision prescribes that after a period of 90 days from the date of receipt of suit summons, the written statement shall not be permitted to be taken on record. The Apex Court in the case of Kailash Vs. Nanhku and others (2005 AIR SCW 2346), has held that though the words used in Order VIII Rule 1 are couched in negative term, still jurisdiction of the court to take written statement on record, after a period of 90 days from the date of receipt of suit summons, is not taken away. 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 held that unless compelling and exceptional case is made out by the party, the court should permit to take written statement on record, after a period of 90 days. 5. In the present case, leave aside giving any compelling or exceptional case, no genuine case is given in the application for setting aside the order of "No written statement". The only reason given is that the papers are received in the vacation. Admittedly, the petitioner has put in appearance much prior to vacation i.e. on 29th January 2009. It, therefore, cannot be said that the petitioner was prevented from filing written statement within a period of 90 days from the date of service of (4) suit summons, for any compelling or exceptional reasons. 6. In that view of the matter, no perversity could be found with the approach adopted by the learned Member of the Motor Accident Claims Tribunal, so as to warrant interference under Article 227 of the Constitution of India. 7. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp7958