1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7061 OF 2009 M/s.East & West Builders ...Petitioner vs. Kirtikumar M.Desai and others ...Respondents Mr.P.K.Dhakephalkar i/b Mr.Niranjan Shimpi for the petitioner Mr.C.K.Tripathi for respondent nos.1 and 2 CORAM :A.S.OKA,J. DATE : JANUARY 28, 2010 P.C. 1 Heard the learned senior counsel for the petitioner and the learned counsel for the 1st and 2nd respondents. By this Writ Petition under Article 227 of the Constitution of India, the petitioner who is the defendant has challenged the order dated 26th February 2009 passed by the trial Court by which the application made by the petitioner for taking the written statement on record after condoning delay has been rejected. The application has been rejected on the ground that there is a delay of 22 months and there is no explanation for the said delay. The opposition of the learned counsel for the 1st and 2nd respondents (original plaintiffs) is on the ground that in the application on which impugned order has been passed, no extraordinary reason has been set out. He submitted that the application is neither signed by the petitioner nor there is an affidavit in support. He, therefore, submitted that the trial Court was justified in rejecting the said application. 2 It is pointed out that a notice of motion taken out by the 1st and 2nd respondents was contested by the petitioner by filing a reply. It is true that the application has been signed by the Advocate appearing for 2 the petitioner in which he has stated that the papers of the suit were not traceable due to shifting of work in the locality of Dindoshi from the Fort Area. 3 The Apex Court has held that outer limit fixed under rule 1 of Order VIII of the Code of Civil Procedure,1908 for filing the written statement is directory in nature and the Court has power to accept the written statement provided a case is made out. 4 The learned senior counsel for the petitioner submitted that if this is the objection of the 1st and 2nd respondents, the petitioner will file a fresh application giving explanation for delay. He stated that such application will be made within a period of two weeks from today. 5 This is not a case where the petitioner has not defended the proceedings. The petitioner filed a reply to the notice of motion taken out by the 1st and 2nd respondents. Therefore, an opportunity deserves to be granted to the petitioner to make a fresh application which can be contested by the 1st and 2nd respondents on all permissible grounds. The petitioner has deposited a sum of Rs.10,000/- towards the costs payable to the 1st and 2nd respondents. Therefore, the 1st and 2nd respondents are adequately compensated. 6 Hence, I pass the following order : i) Impugned order dated 26th February 2009 is quashed and set aside. ii)The petitioner is permitted to withdraw the application at Exh.6 with liberty to file a fresh application for the same relief within a period of 3 two weeks from today. iii)The application which may be made by the petitioner shall be decided by the trial Court as expeditiously as possible and preferably within a period of four weeks from the date of preferring the same. iv)The 1st and 2nd respondents are permitted to withdraw a sum of Rs.10,000/- deposited by the petitioner in this Court by way of cost of this petition. v) All contentions of the 1st and 2nd respondents on the merits of the fresh application are kept open. vi)Writ Petition is partly allowed in above terms. No order as to costs. JUDGE