1 ndm 94 wp.7779.10 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRI PETITION NO. 7779 OF 2010 WITH WRI PETITION NO. 7698 OF 2010 Atmaram Hazarilal Agrawal and ors Vs. Smt. Minaxi Mulraj Kapadia and ors Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. S.M.Wadkar for the Petitioeners. Mr. Vishal V. Kanade i/b Sanjay S. Gawde for Respondent Nos.1 to 3. CORAM : A.S.OKA, J. DATE : 21 st December, 2010. P.C. 1 Rule. 2 The Advocate on record for the original plaintiffs waives service. Other respondents are not necessary parties. Taken up for final hearing forthwith. 3 The Petitioners are defendants in a suit for possession filed by the Respondent Nos.1 to 3 in the Court of Small Causes. The suit premises are shop premises admeasuring approximately 250 sq.ft which are being used for commercial purposes. 4 The Petitioners did not file the written statement within the period stipulated under Rule 1 of Order VIII of the Code of 2 Civil Procedure, 1908 (hereinafter referred to as “the said Code”). Therefore, applications were made by the Petitioners seeking permission for taking the written statement on record. By the impugned orders, the said applications have been rejected. 5 The learned counsel appearing for the Petitioners pointed out that the finding recorded by the trial Court is that the summons was served on 12 th October, 2009 and infact, the written statements were declared / affirmed on 11 th January, 2010. He submitted that the written statements were kept ready within a period of 90 days from the date of service of summons. He, therefore, submitted that applications made by the Petitioners ought to have been allowed. The learned counsel appearing for the original plaintiffs submitted that no case is made out of existence of exceptional circumstances for extending the time provided under Rule 1 of Order VIII of the said Code. He submitted that there is no explanation for delay and therefore, the trial Court rightly rejected the applications. 6 I have given careful consideration to the submissions. It appears that the written statements were declared by the Petitioners on 11 th January, 2010. The finding of the trial Court is that the suit summons were served on 12 th October, 2009. The trial Court has observed that written statements ought to have been filed on 12 th January, 2010. Applications were made on 5 th April, 2010 for taking the written statements on record after condoning the delay. 3 7 The fact that the written statements were ready and declared on 11 th January, 2010, itself makes out a case of existence of extraordinary circumstances warranting extension of time to file written statements. It is true that the said written statements were sought to be tendered 3 months thereafter. As the written statements were signed by the Petitioners withing the time provided by law, the Petitioners cannot be allowed to suffer. The Respondents (original plaintiffs) can be compensated by ordering payment of costs. The amount of costs is quantified at Rs.10,000/- in each petition. 8 Hence, I pass the following order: i. The impugned orders are quashed and set aside and the written statements of the Petitioners are directed to be taken on record ; ii. The Petitioners shall pay costs of Rs.10,000/- in each petition to the original plaintiffs within a period of six weeks from today ; iii. Hearing of the suit is expedited. iv. Rule is made absolute on above terms. [ A.S.OKA, J ]