ssm 1 26.wp.43.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 43 OF 2010 Poonam Rajanpuri Jhamb and another ....Petitioners Versus Hari Niwas Co-op. Housing Society Ltd and others ....Respondents ___________ Mrs. Divya Shar i/b M/s. Divya Shah & Co. for the Petitioners. Shri. Bhaven Gada with Mrs. Yogini D. Gada i/b Harakchand & Co. for the Respondent Nos. 1 to 3. CORAM: B. R. GAVAI, J. DATED : 15 TH MARCH, 2011 P.C.: Rule. Rule is made returnable forthwith. Heard by consent. 2. Mr. Bhaven Gada, learned Counsel appears for the Respondent Nos. 1 to 3. Since no order prejudicial to the interest of Respondent No. 4 is being passed, the requirement of service of rule on the said Respondent is waived. 3. By way of the present Petition, Petitioners challenge the order dated 16 th September, 2009 passed by the City Civil Court, ssm 2 26.wp.43.10 Dindoshi, Mumbai, thereby rejecting the application for condonation of delay in filing written statement. 4. The Respondent Nos. 1 to 3 have filed a suit against the present Petitioners and Respondent No. 4 herein under the provisions of Maharashtra Ownership of Flats Act (MOFA) praying for direction to the present Petitioners to convey the suit property in favour of the Plaintiff No. 1 Society. In the said suit, summons were served on the present Petitioners in February, 2007. Since, the present Petitioners could not file written statement within the stipulated period, the application came to be filed for condonation of delay in filing the written statement and the same was rejected by the Trial Court on the ground that the evidence had already commenced. Being aggrieved thereby, the present Petition. 5. Mrs. Divya Shah, learned Counsel appearing on behalf of the Petitioners submit that since the office of the Counsel was shifted from Fort to Mulund and since the proceedings were also ssm 3 26.wp.43.10 shifted from City Civil Court, Greater Mumbai to City Civil Court, Dindoshi, the file got misplaced. It is further submitted that the Advocate was under a bonafide impression that the written statement was filed. However, when it is noticed that the written statement was not filed, the application aforesaid came to be filed. It is submitted that the written statement could not be filed within the stipulated period due to the bonafide reason and as such, the learned Trial Court ought to have allowed the application. 6. The learned Counsel for the Respondent Nos. 1 to 3, on the contrary, submit that no details regarding the names of advocate etc. are given in the application or Petition and as such no interference is warranted within the extraordinary jurisdiction under Article 227 of the Constitution of India. 7. The provision of Order VIII, Rule 1 of the Code of Civil Procedure, 1908 require that written statement should be filed initially within a period of 30 days or within the extended period of 90 days for the reasons to be recorded by the Court. ssm 4 26.wp.43.10 However, the said provisions have been held to be directory and not mandatory. However, the Apex Court in the case of Kailas Vs. Nanhku reported in (2005) 4 SCC 480 has been held that if the defendant makes out the case, for not filing the written statement within a stipulated period, the Court can permit such written statement to be taken on record for even after the period 90 days has lapsed. 8. In the present case, it can be seen that the written statement could not have been filed within stipulated period, for the reasons beyond the control of defendants. It is on account of change of the office of the of the Advocate for the Petitioners and transfer of the proceedings from one court to another, the Petitioner could not file the same within the stipulated period. In any way, the evidence yet to commence. In sofar as the prejudice caused to the Respondent Nos. 1 to 3 is concerned, the same can be compensated by saddling costs. 9. In that view of the matter, the Petition deserves to be ssm 5 26.wp.43.10 allowed. Rule is made absolute in terms of prayer clause (a). Written statement shall be permitted to be taken on record by the learned Trial Court, if filed within four weeks from today. However, this shall be subject to costs which is quantified to Rs.25,000/-. The Petitioners have already deposited Rs.10,000/- in this Court. The Respondent Nos. 1 to 3 would be at liberty to withdraw the same. In addition, the Petitioners shall deposit Rs.15,000/- in the Trial Court within a period of four weeks from toady. On deposit of the said amount, the Respondent Nos. 1 to 3 would be entitled to withdraw the same. The condition of deposit of costs is a condition precedent for allowing the Petition. On failure to deposit costs within stipulated period, the Petition shall stands dismissed. In the facts and circumstances of the case, hearing is expedited. Parties to act on an authenticated copy of this order. (B. R. GAVAI, J)