1 wp6787.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 6787 of 2010 Mr. Mahesh Pahilajrai Sukhramani & ors. ... Petitioners v/s. Mr. Jibhau Pundu Wagh & ors. ... Respondents Mr. J.S. Chandnani for the petitioners. Mr. Amit Sethe i/b. Mr. Amit Borkar for respondent no. 1. CORAM:- B.R. GAVAI, J DATED :- APRIL 08, 2011. P.C. Rule. Rule made returnable, forthwith. 2. Heard. By consent of parties taken up for final hearing. 3. By way of present petition, the petitioner challenges the order dated 29th March, 2010 vide which the learned Civil Judge, Junior Division, Deorukh has rejected the application filed by the present petitioner for 2 wp6787.10.sxw setting aside no written-statement order and for permission to file written- statement on record. 4. Respondent No. 1-plaintiff has filed the suit for declaration and permanent injunction. In the said suit the present petitioners are defendant nos. 8-10. Though the suit summons were duly served on 29th September, 2008 and though the defendants have put in their appearance, they did not file written-statement for a period of 90 days and no such written statement order came to be passed on 22nd January, 2009. After period of two months, the petitioners filed an application for setting aside no written statement order with the permission to file written-statement on record. The same is rejected. Hence, the present petition. 5. Learned Counsel for the petitioner submits the reason given by the petitioners for not filing the written-statement was that one of the close relatives namely one Nanakram Sukheja was murdered and, therefore, the petitioners were under a shock. The learned Counsel relies on the Judgment of the Apex Court in the case of Sambhaji & ors. v/s. Gangabai & ors. reported in 2009 (1) Bom. C.R. 81 3 wp6787.10.sxw 6. Learned Counsel for the respondents vehemently opposes the petition. He further submits that since the affidavit in lieu of examination- in-chief is already filed, application was not tenable. 7. The learned trial Court has rejected the application on the ground that there is no provisions in law which permits the written statement to be taken on record after a period of 90 days. It appears that the learned trial Court has not noticed the Judgment of the Apex Court in case of Kailash v/s. Nanhku reported in (2005) 4 SCC 480 and judgment of the Apex Court in the case Sambhaji (supra). The Apex Court has clearly held that provisions of Order 8 Rule 1 are not mandatory but directory. It has been held that jurisdiction of the Court to permit the written statement to be taken on record even after a period of 90 days is not taken away, however, the same has to be exercised in a very exceptional and compelling circumstances. The Apex Court in the case of Sambhaji (supra) has held that in such a matter liberal approach is called for. In the present case also the reason given cannot be said to be of a trivial nature. I, therefore, find that learned trial Court has erred in holding that he has no jurisdiction to entertain the application. 4 wp6787.10.sxw 8. Insofar as the prejudice that is caused to the petitioner is concerned, that can be compensated by saddling cost. 9. In that view of the matter, impugned order is quashed and set aside. The application filed by the petitioner below exhibit 62 for setting aside no written-statement order and permission to file written-statement on record is allowed. It is further made clear that if after filing of the written-statement, the respondent-plaintiff finds it necessary to file an additional affidavit in lieu of examination-in-chief, he would be permitted to do so. 10. The petition is allowed subject to cost which are quantified at Rs. 25,000/-. The cost be deposited in the trial Court within a period of four weeks from today. On deposit of the cost, the respondent-plaintiff would be at liberty to withdraw the same. The deposit of cost in the aforesaid period is a condition precedent for allowing the petition. On failure to deposit the cost within the period prescribed, the petition shall stand dismissed without further reference to the Court. (B.R. GAVAI, J)