1 wp9690.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 9690 of 2010 Vilas Balasaheb Gawde ... Petitioner v/s. Sandeep Shrirang Walke ... Respondent Mr. R.S. Datar for the petitioner. CORAM:- B.R. GAVAI, J. DATED :- MARCH 08, 2011. P.C. By way of present petition, the petitioner challenges the order dated 9th February, 2010 vide which the application filed by the present petitioner for setting aside no written statement order and taking written statement on record came to be rejected. 2. Shri Datar, learned Counsel for the petitioner submits that taking the lenient view, this Court should condone the delay and set aside the order of no written-statement. 2 wp9690.10.sxw 3. Undisputedly, there is delay of almost six months in lodging an application. The only reason given is that the Junior Advocate engaged on behalf of the petitioner and his counsels were under an impression that the written-statement was already taken on record. However, when the matter was fixed for cross-examination of plaintiff's witness, it was noticed that written-statement was not filed. 4. No details regarding the lawyer or his clerk who according to the petitioner were negligent have been given in the petition nor has the petition given any details as to what action has been taken against the said lawyer or his clerk for their negligent attitude. 5. The Apex Court in the case of Kailash vs. Nanhku reported in (2005) 4 SCC 480 has held that though the provisions of Order 8 Rule 1 are directory and not mandatory, however, the discretion for permitting the written-statement to be taken on record has to be exercised only in exceptional and compelling circumstances when party makes out genuine case for the same. 6. The learned Judge while passing the impugned order has found that 3 wp9690.10.sxw no such exceptional compelling circumstances was made out by the petitioner and as such has rejected the application. The learned Judge relying on the Judgment of the Apex Court and after considering the law laid down by the Apex Court in the said judgment has refused to exercise the discretion. 7. No case is made out for interference under extraordinary jurisdiction under Article 227 of the Constitution. Hence, rejected. (B.R. GAVAI, J)