KBP 5874-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5874 OF 2009 Mrs.Varinder Kaur Khadai ..Petitioner Vs. Jamshed Vafadar Khodai ..Respondent ......... Mr.A.K.Lulla, for petitioner ......... CORAM : A.S.OKA, J.. DATE : 5 th August, 2009. P.C. : 1] Heard learned counsel for the petitioner. The petitioner is original plaintiff. The respondent is the original defendant. The grievance of the petitioner is that on 3rd November, 2008 the written statement filed by the respondent could not have been accepted by the trial court as there was a gross delay in filing written statement. It is pointed out that on 28th November, 2008, an application was filed by the petitioner raising objection to the action of taking on record the written statement filed by respondent on the ground that the written statement was sought to be filed after lapse of one year and eight months. The said application has been rejected. The challenge in this writ petition under Article 227 of the Constitution of India is to the said order rejecting the application. 2] In the Roznama of proceedings dated 28th November, 2008 the order passed by the trial court on the application made by the petitioner has been recorded. The learned Judge observed that the Roznama of the suit does not show that on behalf of respondent his advocate had waived service of writ of summons. The learned Judge observed that on 10th September, 2008 a direction was given to the petitioner to serve the writ of summons returnable on 3 rd November, 2008 and on the returnable date i.e. 3rd November, 2008, the written statement has been filed and the same has been taken on record. KBP 5874-09.sxw 2 3] The learned counsel appearing for the petitioner pointed out that on 10th September, 2008 there was no occasion for learned trial judge to pass an order directing the service of writ of summons as the advocates appearing for both petitioner and respondent were absent. He pointed out that even the parties were absent on that day. He submitted that a reply was filed to the notice of motion by the respondent in the year 2007. He submitted that considering the provisions of Rule 1 Order VIII of the Code of Civil Procedure, 1908, the written statement could not have been belatedly taken on record. 4] I have considered the submission. The learned Judge has noted that the writ of summons was not served on respondent and the advocate for respondent had not waived service of summons. It is true that Roznama dated 12th September, 2008 shows that the parties and the advocates were absent. However, there is an order passed on that day directing the petitioner to serve writ of summons to the respondent. The next date fixed was 3 rd November, 2008. On 3 rd November, 2008 the written statement filed by respondent was taken on record. I find no fault in the action of the learned Judge of taking the written statement on record. 5] This writ petition is filed for invoking extraordinary jurisdiction under Article 227 of the Constitution of India. Considering the nature of impugned order no case is made out for exercise of the jurisdiction under Article 227 of the Constitution of India. Therefore, no case made out for interference. Writ petition is, accordingly, rejected. ( A.S.OKA, J. )