1 WP No.8846/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8846 of 2010 Sandeep Vilas Lokhande and ors. ... Petitioners versus Sanjay Namdeo Mali (Lokhande) and ors. ... Respondents ... Mr.Abhijeet kadam i/b U.B. Nighot for the petitioners Mr.Sandesh Deshpande for respondent no.1. CORAM : D.G. KARNIK, J DATED : 23rd June 2011 P.C. 1. Rule returnable forthwith. Mr.Deshpande waives service for respondent no.1. Respondent nos.2 and 3 are formal respondents being co-defendants of the petitioner. Hence, service of Rule on respondent nos.2 and 3 is dispensed with. 2. This petition is directed against the order dated 20 August 2010 rejecting the petitioners’ application for setting aside “No WS order”. A suit summons was served on them on 15 February 2010 and they filed appearance on 18 February 2010. They applied for time to file written statement which was granted upto 23 April 2010. On 23 April 2010, petitioners again applied for time to file 2 WP No.8846/10 written statement and application was granted and matter was posted on 17 June 2010 for filing of the written statement. On 17 June, petitioners did not file the written statement but on the next date i.e. 25 June 2010, they appeared and filed the written statement along with an application for condonation of delay and setting aside “No WS order”. They submitted that the written statement remained to be filed on 17 June 2010 through oversight. The court however rejected the application for condonation of delay and for setting aside the “No WS order”. Aggrieved petitioners are before this court. 3. Obviously, the written statement has been filed beyond the period of 90 days. However, on 23 April 2010, period of 90 days had not expired and court was right in granting them further time for filing the written statement. Time upto 17 June 2010 was granted in view of the fact that period of 90 days provided under Order 8 Rule 1 was to expire during the period of summer vacation. No fault therefore can be found with the order of the court granting time upto 17 June 2010. 4. It is true that on 17 June 2010, petitioners ought to have filed the written statement. However, they had given an explanation that it was because of oversight that written statement was not filed. This statement which was supported by affidavit and was not contradicted. In the circumstances, trial court ought to have condoned the delay though costs could have been imposed for the lapse. Counsel for respondent no.1 also submits that costs may be imposed if the court is inclined to condone the delay. 3 WP No.8846/10 5. For the reasons mentioned above, the petition is allowed, impugned order is set aside and written statement which was tendered by the petitioners (defendant nos.1 to 5) on 25 June 2010 along with the application for condonation of delay is taken on record subject to payment of costs of Rs.2,000/-. Costs shall be paid in the trial court within four weeks of the writ reaching the trial court. (D.G.KARNIK, J)