( 1 ) wp1120.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1120 OF 2011 Raghunath Jagannath Jadhav & Ors. .. Petitioners Versus Tawji s/o. Sambhaji Dhage & Ors. .. Respondents Mr. S.V. Suryawanshi, Advocate for the petitioners. CORAM : A.V. NIRGUDE, J. DATED : 09.09.2011 P.C. :- 1. The learned advocate appearing for the petitioners mentions that although respondent No.2 is reported to be dead, her legal representatives are already parties to this petition and they are respondent Nos. 3,4 & 5. He says that as per his instructions there are no other legal representatives of respondent No.2. In view of this at the petitioners’ risk the petition shall be proceeded further. 2. This writ petition filed under Articles 226 and 227 of the Constitution of India challenges order dated 28th April, 2010, passed by learned Civil Judge, Senior Division, Mudkhed at Exh.38 in Regular Civil Suit No. 123 of 2009. Exhibit 38 was the petitioners’ application for setting aside “No Written Statement Order” passed against them. The application was not opposed by respondent No. 1/plaintiff, yet the learned Judge rejected the application. The learned Judge was shown law that the ( 2 ) wp1120.11 provisions of Order 8 Rule 1 & 2 of C.P.C. are not mandatory but directory, yet he did not take lenient view of the petitioners’ case. The learned Judge erred in not allowing the petitioners to file written statement. This is a peculiar suit in which respondent No.1/plaintiff has sought declaration that he has preferential right in respect of certain immovable property in the light of Section 22 of the Hindu Succession Act, 1956. In view of complicated nature of the suit, it would be better if the same is decided on merits. It was not proper for the Trial Court to brush aside the application saying that the petitioners could not have come to the Court for filing written statement at any time as per their wish. The learned Judge ought to have taken lenient view of the ground for delay when the petitioners stated that it was petitioner No.3-Gopinath, who was looking after the case and who is employed as driver and so was required to leave Mudkhed and remain away for quite sometime. The petition should, therefore, succeed. The writ petition is allowed. The impugned order is set aside. The petitioners are allowed to file written statement in the suit before the lower Court. [A.V. NIRGUDE, J.] snk/2011/SEP11/wp1120.11