1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7160 OF 2008. Suresh Babu Nayar. .... PETITIONER. VERSUS Karbhari Dagadu Bhoknal and others. .... RESPONDENTS. ... Shri L.V. Sangit, Advocate for Petitioner. Respondents served – absent. ... CORAM : S.S. SHINDE, J. DATE : 11th AUGUST, 2009. PER COURT: 1. This petition is filed challenging the order dated 1st September, 2008 passed by the Joint C.J.J.D., Sangamner below Exh.42 in R.C.S. No. 202 of 2005. 2. The respondents no.1 and 2 herein filed R.C.S. No.202 of 2005 in the Court of Civil Judge, Senior Division, Sangamner against the present petitioner and others for fixation of boundaries, removal of encroachment, possession and injunction. The summons notice was issued in the matter and as the Bailiff could not find the petitioner, the summons was affixed on the conspicuous part of the premises and panchanama was prepared to 2 that effect on 18.8.2005. 3. The present petitioner appeared in the matter through the Advocate and filed application on 20.1.2007 requesting the Court to quash and set aside “No W.S.” order and allow the petitioner to file written statement on record. The said application was opposed by the original plaintiffs. After hearing the parties, the Joint C.J.J.D., Sangamner rejected the application (Exh.42) by his order dated 1st September, 2008. Hence, this petition. 4. Though the respondents are served, none appears for the respondents. The learned Counsel for the petitioner submitted that though under the amended provisions of the Order 8, Rule 1 of Code of Civil Procedure, time limit prescribed for filing written statement is 90 days, the provisions are directory and not mandatory in nature and the nature of the provisions is procedural. It is further submitted that this Court as well as Apex Court had occasion to interpret Order 8 Rule 1 of the C.P.C. And it is held that the said provisions are mandatory and in exceptional cases, delay can be condoned. The learned Counsel submitted that the Court has discretion to permit the defendant to file written statement beyond period of 90 days in exceptional cases and the principal behind this is that a party cannot be non suited on technicalities and must be given an opportunity to defend its case. In support of his submissions, the learned Counsel for the petitioner relied on the judgment 3 of this Court in the case of Shailaja A. Sawant (DR.) vs. Sayajirao Ganpatrao Patil [2004(2) Mh.L.J. 419] and the judgment of the Apex Court in the case of [Kailash vs. Nanhku and others [2005(2) Mh.L.J. 775]. 5. The learned Counsel relying on the Head Note of reported judgment of this Court in the case of Kaluba s/o Madhavrao Upase vs. Rangubai w/o Rajabhau Atole and others [2007(3) Mh.L.J. 624], submitted that the petitioner herein should not be denied opportunity to file written statement on technicalities and he must be given opportunity to defend its case. Therefore, he submitted that this petition deserves to be allowed by setting aside the impugned order passed by the Joint C.J.J.D., Sangamner dated 1st September, 2008. 6. Though the respondents are served, none appears for them and, therefore, it will have to be presumed that the pleadings in the petition are not controverted and the same are acceptable to the respondents. 7. Perusal of the application filed at Exh.C (page 25) would show that the present petitioner has stated in the application that the requisite information about the purchase of the property by the plaintiff was awaited from the concerned office and also the necessary information from the office dealing with measurements of the properties was also awaited. It is further mentioned in the said application that the petitioner 4 – defendant originally belongs to State of Kerala. He is handicapped because of Marathi language being used in the Court and, therefore, it took time for him to prepare and file written statement. 8. On perusal of the application, it is clear that the petitioner had made out a case that he was facing problem of language being originally from Kerala State and in normal course, this ground should have been accepted while entertaining the application for setting aside “No W.S.” order. It is also relevant to mention that the matter is pending at the stage of recording of evidence and no prejudice would be caused to the original plaintiff by accepting written statement. It is true that sufficient time was granted by the learned Judge for filing written statement and petitioner failed to file the same within the time granted. However, in the facts and circumstances of this case and more particularly, the averments in the application that the present petitioner is original belongs to Kerala State and he is handicapped because of language problem, will have to be accepted. 9. Hence, in the facts and circumstances of this case, the writ petition is allowed in terms of prayer clause (A) and disposed of. [ S.S. SHINDE, J ] ... PLK/#