1 87-3503-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3503 OF 2010 Kirtikumar M. Desai & Another .. Petitioners. Vs. East and West Developers & Another .. Respondents. Mr. C.K.Tripathi, for the Petitioners. Mr. P.K.Dhakephalkar i/b. Smt. Sunita R. Pandey, for Respondent No.1. CORAM : B.R.GAVAI, J. DATE : 7th JANUARY, 2011. P.C.: 1 By way of the present Petition, the Petitioners pray for quashing and setting aside order dated 17th March, 2010, by which the Notice of Motion filed by the Respondent/Defendant for condonation of delay in filing Written Statement and taking Written Statement on record has been allowed. 2 87-3503-10.sxw 2 The learned counsel for the Petitioners submits that there is a delay of 3 years in filing the Written Statement. It is further submitted that reasons for delay are not properly explained. It is, therefore, submitted that the learned Trial Judge has erred in allowing the application. 3 In view of amended provisions of Order VIII Rule 1 of the Code of Civil Procedure, the Written Statement has to be filed within 30 days though the said period can be extended by the Court up to 90 days on sufficient cause being shown by the Defendant for not filing the same within the period prescribed. However, by now it is a settled law that the provisions of Order VIII Rule 1 are discretionary and not mandatory. It has been held that if Defendants makes out an exceptional case for not filing the Written Statement within the period of 90 days, then the Court has power to permit the Defendants to file Written Statement. In the present case, the grounds given is that though a reply was filed to the Notice of Motion and it was contested, subsequently on account of the opening of new Court at Dindoshi, the lawyer of the Defendants was required to change his office and during transit the papers were misplaced. Accepting these reasons, the learned Trial Court has to exercise the jurisdiction to comment the Written Statement to be taken on record. 3 87-3503-10.sxw 4 The scope of interference by this Court under Article 226 is very limited, and unless it is found that the discretion exercised by the trial Court has been exercised in a perverse manner, it will not be possible for this Court to interfere with the same. The learned Judge has given cogent and sound reasons for allowing the application. In that view of the matter, no interference is made out. Hence, rejected. 5 Further, taking into consideration that the Plaintiff is senior citizen, the learned Civil Judge is directed to dispose off the matter as expeditiously as possible and preferably within a period of one year from today. (B.R.GAVAI, J.)