1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6821 OF 2009 WITH CIVIL APPLICATION NO.178 OF 2010 Mrs. Usha Wd/S.K. Vishaye & ors ..Petitioners V/s. Mrs. Lydia Felix D'Aguir & anr. ..Respondents Mr.P.B.Kakade, Advocate, for the Petitioners Mr.M.H.Munshi, Advocate, for Respondent No.1 CORAM : A.S.OKA, J. DATE : 19TH APRIL, 2010 P.C. . Heard the learned Counsel appearing for the Petitioners and the learned Counsel appearing for the 1st Respondent. The Petitioners in this Writ Petition under Article 227 of the Constitution of India are the original Defendant Nos. 1 to 3 and 5. 1st Respondent is the original Plaintiff. 2. The 1st Respondent had filed a Suit for eviction against the Petitioners in the Court of Small Causes. The Suit was dismissed by the Court of Small Causes and an Appeal was 2 preferred by the 1st Respondent. An Appeal also came to be dismissed. Thereafter, the present Suit was filed by the 1st Respondent in the City Civil Court in March, 2007. Summons was issued to the Petitioners and the other Defendants. There is no dispute that the summons was duly served to the 1st to 3rd Petitioners in September, 2007. Written Statement was not filed by the Petitioners within stipulated time. Therefore, a Notice of Motion was taken out by the Petitioners on 28th April, 2008 for condonation the delay in filing the Written Statement which was tendered along with Notice of Motion. The learned Trial Judge by the impugned Order has rejected the said Notice of Motion. 3. The learned Counsel appearing for the Petitioners submitted that the Petitioners contested the Notice of Motion for interim relief taken out by the 1st Respondent by filing a reply and in fact, the Court went on adjourning the hearing of the Notice of Motion for interim relief from time to time. He submitted that the reasons have been set out for the delay in the Affidavit in support of the Notice of Motion. He submitted that considering the reasons set out the Trial Court ought to 3 have allowed the Notice of Motion. 4. The learned Counsel appearing for the 1st Respondent relied upon a decision of the Apex Court in the matter of R. N. JADI & BROTHERS v. SUBHASHCHANDRA ( (2007) 6 Supreme Court Cases 420). He submitted that the delay in filing the Written Statement was of 345 days and as held by the Apex Court, the said delay cannot be condoned as a matter of course and only if exceptional circumstances are made out, the Court gets power to condone the delay. He pointed out that the Trial Court passed an Order on 22nd September, 2008 that the Suit will proceed without Written Statement and only after the said Order was passed, the present Notice of Motion was taken out. He submitted that there is no explanation for delay. 5. I have considered the submissions. The provision fixing an outer limit under Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (Hereinafter referred to as “the said Code”) for filing Written Statement has been held to be directory. However, time cannot be extended as matter of a 4 course. Only if exceptional reasons or exceptional circumstances are set out that the time can be extended. 6. In the Affidavit in support of Notice of Motion taken out by the Petitioners, the 2nd Petitioner pointed out that after dismissal of the first Suit filed by the 1st Respondent, the present Suit was filed which was not maintainable. It is pointed out that Notice of Motion for interim relief was taken out by the 1st Respondent which is being contested by the Petitioners was adjourned from time to time. 7. It is not in dispute that to the Notice of Motion for interim relief taken out by the 1st Respondent, the Petitioners have filed a reply and that they are contesting the Notice of Motion. In the said reply, issue of maintainability has been raised by the Petitioners. They have also raised an issue of jurisdiction. Hearing of the said Notice of Motion was adjourned from time to time which is reflected in paragraph 5 of the reply to the Notice of Motion. It is stated that the said Notice of Motion is still pending which is apparent even from the reply filed by the 1st Respondent to this Petition. It is 5 pertinent to note that the fact that the Petitioners are contesting the Notice of Motion for interim relief shows their intention of contesting the suit filed by the 1st Respondent. While contesting the said Notice of Motion, the Petitioners have set out their defence to the suit. It is also pertinent to note that the Written Statement was tendered by the Petitioners along with the Notice of Motion on which the impugned order has been passed. These peculiar facts make out a case of existence of exceptional circumstances for permitting the Petitioners to file Written Statement. The Trial Court ought to have made the Notice of Motion absolute. Hence, the Petition must succeed. Considering the length of delay, the amount of costs is quantified at Rs.10,000/-. 8. Hence, I pass the following order. (i) The Order dated 9th April, 2009 is quashed and set aside subject to Petitioners paying costs of Rs.10,000/- to the 1st Respondent within a period of eight weeks from today. Deposit of the amount of the costs with the Trial Court within stipulated period will be treated as sufficient compliance. (ii) On deposit of amount of the costs within stipulated time, Notice of Motion No.959 of 2009 will stand absolute in terms of prayer clauses (a) & (b). 6 (iii) If compliance is not made with the Order of payment of costs, the impugned Order will stand. (iv) Petition is allowed in above terms. (v) In view of disposal of the Petition, Civil Application No.178 of 2010 does not survive and the same is disposed of . (A.S.OKA, J.)