1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8058 OF 2009 Smt.Gomtibai w/o Gangulalji Bhutada, age: 68 years, Occ: Household, through her GPA holder, Vinod s/o Gangulalji Bhutada, age: 32 years, Occ: Business, R/o New Mondha, Parbhani. Petitioner Versus Municipal Council, Parbhani, through its Chief Officer, Parbhani. Respondent Mr.P.K.Lakhotiya, advocate for the petitioner. Mr. K.G.Salunke, advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 24 rd August, 2010. ORAL JUDGMENT: 1 Heard Shri P.K.Lakhotiya, learned Counsel for the petitioner and Shri K.G.Salunke, learned Counsel for the Respondent. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for the parties. 2 2 The order dated 20.01.2009, passed by II Joint Civil Judge, Junior Division, Parbhani, in Regular Civil Suit No. 282/2003, thereby permitting the defendant to present written statement on record after lapse of about five years since presentation of the suit, is subjected to challenge in this petition. 3 The petitioner herein presented a suit being Regular Civil Suit No.282/03 claiming decree of perpetual injunction in relation to the urban property situate at Parbhani. It is not necessary to go into factual details of the matter, suffice it to note that suit summons were served on the defendants on 18.11.2003. As the defendants failed to present written statement, the trial Judge directed to proceed with the suit without written statement of the defendant on 16.03.2004. After lapse of about five years i.e. on 18.12.2008, defendant presented an application requesting the Court to set aside no written statement order as well as sought permission to place on record the written statement. The application was opposed by the plaintiff on several grounds. It is contended by the plaintiff that there are no convincing reasons demonstrated as to what prevented the defendant from presenting the written statement earlier. It is contended that the application is cryptic and does not give details as to why the written statement was not presented earlier. The learned trial Judge, however, without assigning any reason, directed quashment of earlier order and permitted the defendant to place on record the written 3 statement. 4 I have perused the application as well as the impugned order passed by the trial Court. The trial Court, while allowing the application presented by defendant, has not assigned any reason. Learned Counsel for the petitioner – original plaintiff submits that written statement is required to be presented by the defendant within 30 days from the date of receipt of summons. Further period of 90 days can be permitted for presentation of written statement, if defendant shows sufficient cause. In the instant matter, however, the defendant has tendered the application with a request to permit him to place on record the written statement after about five years. Although this Court has ruled that the provisions of Order VIII Rule 1 of the Code of Civil Procedure are directory in nature, however, it does not preclude the trial Court from recording convincing reasons for entertaining the request made by the defendant. The order passed by the trial Court, as stated earlier, is cryptic and sans reasons. 5 Learned Counsel for the petitioner places reliance on the judgment of the Apex Court in the case of Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Store Ltd. and others, reported in 2007 (2) Bom. C.R. 53, and contends that proviso to Rule 1 of Order VIII of the Code of Civil Procedure permits extension of time if the Court is satisfied about existence of reasons to be recorded in writing. In the instant matter, the trial Judge has not given 4 convincing reasons for acceptance of written statement after about five years nor the order passed by the trial Court gives details as to why prayer made by the defendant is being accepted. In the circumstances noted above, there is no alternative except to quash and set aside the order passed by the trial Court and remit the matter back for fresh consideration. 5 In the result, writ petition is allowed. The order passed by II Joint Civil Judge, Junior Division, Parbhani on 20.01.2009 in R.C.S. No.282/2003, is quashed and set aside and the matter is remitted back for fresh consideration of the application tendered by the defendant at Exhibit-66. The trial Court shall, after hearing the parties concerned, proceed to decide the application in accordance with the provisions of law. 6 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp805809