1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7730 OF 2009 Laxmi Kishor Nagre .. Petitioner V/s Mohan Churharmal Gurudasani .. Respondent Mr. Balasaheb Deshmukh with Ms. Priti Tare i/b Bilawala & Co. for the petitioner. Mr. J.B. Singh i/b Mr. R.R. Sharma for the respondent. CORAM : D.G. KARNIK, J. DATE : 22ND JUNE 2010 P.C. : 1. Rule, returnable forthwith. 2. Mr. Singh waives service for the respondent. 3. By consent, taken up for hearing forthwith. 4. This petition is directed against an order dated 12th November 2008 passed by the learned Joint Civil Judge, Senior Division, Nasik rejecting the application made by the petitioner-defendant for setting aside “No W.S. order” and taking the written statement on record. 5. The petitioner did not file the written statement within the time provided under Order 8 Rule 1 of the Code of Civil 2 Procedure. The Court therefore passed in the open court “No W.S. order” on 9th August 2007 and directed that the suit would be proceed without the written statement. The petitioner thereafter tendered the written statement on 10th February 2008 along with an application for setting aside the “No W.S. order” and condonation of delay in filing the written statement. The application was accompanied by a medical certificate. That application was rejected on the ground that the petitioner had attended another suit which was filed by her and therefore she could also attend to and file the written statement in the present suit. 6. In the light of the medical certificate which shows that the petitioner was suffering from multiple diseases, namely hypertension, diabetes and ischemic heart, the learned Trial Judge ought to have been a little more considerate and granted the extension. In Kailash v. Nanhku, (2005) 4 SCC 480, the Supreme Court has held that the provisions of Order 8 Rule 1 of the Code are not mandatory but are directory and in appropriate cases the Court can extend the time. Of course there is a caveat that extension should not be granted as a matter of routine but as an exception for reasons to be recorded in writing and can be subject to imposition of costs. 3 7. In the present case, taking into consideration the fact that the petitioner had attended the other suit on some occasions, and also the fact that the on account of illness there was delay in filing the written statement, it can be allowed subject to exemplary costs. In my view, the costs of Rs.25,000/- would be adequate to compensate the respondent- plaintiff for the delay as also to compensate him for the costs incurred by him in defending the present writ petition. Hence, I pass the following order:- 8. The impugned order is set aside. “No W.S. order” passed against the petitioner is quashed and set aside. The written statement filed by the petitioner be taken on record subject to payment of costs of Rs.25,000/- as a condition precedent. Counsel for the petitioner states that Rs.15,000/- have already been deposited in this Court. The petitioner are permitted to withdraw the said amount but she shall deposit the entire amount of Rs.25,000/- in the Trial Court within 4 weeks. On such deposit, the respondent-plaintiff is permitted to withdraw the same. 9. In the event the costs are not deposited in the Trial 4 Court within 4 weeks hereof, the writ petition shall stand dismissed and the impugned order shall stand confirmed without further reference to the Court. (D.G. KARNIK, J.)