(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 799 of 2009 1. Sow. Sunita w/o. Nagnath Nalapure, 2. Nagnath s/o. Sadashiv Nalapure, 3. Sow. Indumati w/o. Bapusaheb Gange, 4. Arvind s/o. Vithal Yerme. .. Petitioners. versus Rukmangadh s/o. Sadashiv Nalapure. .. Respondent. .................. Mr. S.B. Rohile, Advocate, for the petitioners. Mr. S.S. Manale, Advocate, for the respondent. .................. CORAM : B.R. GAVAI, J. DATE : 16TH JULY 2009. COURT’S ORDER : 1. By way of present petition the petitioners have challenged the order dated 11th August 2008, passed by the learned 4th Joint Civil Judge (Senior Division), Latur, below Exhibit 30 in Special Civil Suit No. 155/2006, thereby rejecting the application filed by the present petitioners for setting aside the order of "no written statement" and for (2) permission to take written statement on record. 2. The respondent has filed a suit for pre-emption and for possession of the suit land. 3. In the said suit, the petitioners were served with suit summons on 22nd October 2006. Accordingly, on behalf of some of the petitioners, Vakalatnama was filed on 3rd November 2006. Since the written statement was not filed, order of "no written statement" came to be passed on 15th February 2007. Thereafter, an application for setting aside "no written statement" order was filed on 6th March 2007. The same was rejected as it was not supported by affidavit. Thereafter, on 17th July 2007, the present application was filed. The same is rejected. Hence, the present petition. 4. Mr. S.B. Rohile, learned Counsel appearing for the petitioners, submits that in the interest of justice, the trial court ought to have permitted the petitioners to file their written statement. He submits that if the petitioners are not permitted to file their written statement, they would be losing their valuable right to contest the suit. 5. Mr. S.S. Manale, learned Counsel appearing for the respondent, submits that the petitioners have been throughout negligent. He submits that though there was ample opportunity to the petitioners, they have not taken steps to file written statement within the stipulated period. (3) 6. The Apex Court in the case of Kailash Vs. Nanhku and others (2005 AIR SCW 2346) has held that the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, fixing time schedule for filing of written statement are directory and not mandatory. However, the Apex Court has further held that the time schedule contained in the provision is to be followed as a rule and departure therefrom should be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking. The Apex Court has further held that the extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of defendant and grave injustice would be occasioned if the time was not extended. 7. Thus, the power to permit the defendant to file written statement beyond the period of 90 days, from the date of service of suit summons, has to be exercised in an exceptional and compelling circumstances where a party makes out a case that due to the reasons beyond the control of it, could not file written statement with the stipulated period. A party is required to file written statement within a period of 30 days from the date of receipt of suit summons and thereafter within a period of 90 days from the date of receipt of suit summons, if it makes out a case setting out sufficient cause that it was not in a position to file written statement within a period of 90 days from the date of receipt of suit summons. No doubt, the said period of 90 days can be extended, but it is to be done only in exceptional and compelling circumstances. (4) 8. In the present case, though the suit summons was received by the defendant on 22nd October 2006, and though Vakalatnama was filed on 3rd November 2006, no steps were taken by the petitioners to file written statement within a period of 90 days from the date of receipt of suit summons. As such, the order of "no written statement" was passed on 15th February 2007. Thereafter, the defendant filed application for setting aside the order of "no written statement" on 6th March 2007, that too, without supporting affidavit and without placing written statement on record. The said application was rejected on the very same day. The petitioners thereafter waited for a further period of four months and filed application on 17th July 2007. The trial court, by a one line order, has allowed the said application. The present respondent had approached this court against the said order, by filing Writ Petition, being Writ Petition No. 93 of 2008. This court had set aside the said order and remanded back the matter for considering it afresh in accordance with law. On remand, the trial court by giving sound and cogent reasons, has rejected the said application. 9. From the perusal of the application filed by the present petitioner, so also, the impugned order, it cannot be said that the petitioners were prevented by compelling and exceptional circumstances to file written statement within a period of 30 days or 90 days from the date of receipt of suit summons. As such, no exceptional case was made out for extension of period beyond 90 days, from the date of receipt of suit summons, for filing written statement. 10. No perversity could be found with the approach adopted by (5) the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 11. Petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ...................... bgp/wp799