WP. 8286-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 8286 OF 2010 Madan Ramnath Lokhande & Anr. ...Petitioners Vs. Shri Balaji Mandir Private Charitable Religious Endowment (Maruti Mandir) Trust & Ors. ...Respondents *** Mr. S. R. Page, for the Petitioners. Mr. B. C. Palarechu, for the Respondent No.1. *** CORAM: V. M. KANADE J. DATE : JUNE 28, 2011 P.C. 1. Heard the learned counsel appearing for the petitioners and respondent No.1. Petitioners are challenging the ‘No W.S. order’ dated 5-8-2008, passed by the trial court. The learned counsel appearing on behalf of the respondent No.1/plaintiff has raised a preliminary objection regarding maintainability of petition under Art. 227 of the Constitution of India. It is submitted that Civil Application ought to have been filed under Section 115 of the Code of Civil Procedure and filing of a Writ WP. 8286-10 - 2 - Petition under 227 of the Constitution of India is an abuse of process of law. Secondly, it is submitted that petitioners had challenged the impugned order passed by filing the revision application before the District Court. However, the order passed by the revisional court rejecting the revision application has not been challenged. 2. In my view, the submissions made by the learned counsel for the respondent No.1 cannot be accepted. The petition can be entertained by this Court under Art. 227 of the Constitution of India, since the revisional court has refused to entertain the revision application on the ground that it is not maintainable under Section 34(4) of the Maharashtra Rent Control Act, 1999. Secondly, though the revisional court has refused to entertain the revision application, the petitioners were perfectly justified in challenging the original order passed by the trial Court. 3. Learned counsel appearing on behalf of the petitioners submitted that the summons was served in this case on 5th August, 2008. It is submitted that an application for setting aside ‘No W.S. order’ was filed on the very day i.e. 5-8-2008. It is submitted that application was filed for setting aside the said the ‘No W.S. order’ on 3rd October, 2008 and at that time the written-statement was ready. It is submitted that on WP. 8286-10 - 3 - account of ailment of the members of the defendant’s family; and since the exams of their children were going on, it was not possible for all the defendants to come together and prepare the written-statement. It is further stated that the defendants have decided to file the written- statement together after the summons was served on all of the defendants, and therefore, though their written-statement was ready, since it was decided to wait for the other defendants, the said written- statement could not be filed in time. It is further submitted no prejudice would be caused to the plaintiff, if written-statement is allowed to be filed on record. 4. The trial Court rejected the said application on 3-10-2008, mainly on the grounds that the cause which was shown by the plaintiff was not sufficient and averments were very vague. Against this order, defendants have filed the revision application before the District Court under Section 34(4) of the Maharashtra Rent Control Act, 1999. The said application was dismissed on the ground that it is not maintainable. 5. Learned counsel appearing for the petitioners submitted that sufficient cause has been shown by the defendants for the delay caused in filing the written-statement and therefore, the trial Court erred in rejecting the said application. WP. 8286-10 - 4 - 6. Learned counsel for the respondent/plaintiff vehemently submitted that writ petition is liable to be dismissed in limini. It is submitted that defendants had given different grounds at different stages, and therefore, on that ground alone, writ petition is liable to be dismissed. It is submitted that it is inconceivable that exams of the children were scheduled in the month of August. It is submitted that it is common knowledge that exams are over in the month of May and therefore, a false ground was raised by the defendants in their application. It is submitted that particulars were not mentioned about sickness of the members of the family, and no medical certificate to that effect was annexed. It is submitted that in the application, it was submitted that certain documents are to be collected. This ground was not taken in the application which was filed in the trial Court. It is submitted that therefore, this Court should not entertain this petition while exercising its jurisdiction under Art. 227 of the Constitution of India. 7. After Amendment of Order 8, Rule 1 of the Civil Procedure Code, period of limitation is prescribed for filing the written-statement. Written-statement, therefore, has to be filed within 30 days and at the most within a period of 90 days. The Apex Court, however, has WP. 8286-10 - 5 - interpreted the said provision and has held that though the word ‘shall’ is used, the said provision is not mandatory but is directory and the court has to consider whether sufficient cause has been shown for not filing the written-statement in time. 8. In my opinion, since the Apex Court has observed that the said provision is not mandatory, a discretion vests in the trial court to consider whether the cause which is shown by the defendants is sufficient or not. While exercising this discretion, however, court has to act judiciously; the court will have to consider whether the defendants had deliberately not filed written-statement in time for the purpose of protracting the litigation; or whether on account of some genuine difficulty, the said written-statement could not be filed. The court has to consider whether any serious prejudice is caused to the plaintiff, if the written-statement is allowed to be filed after expiry of 90 days. 9. In the present case, it is an admitted position that though the petitioners herein, were served on 5th May, 2008, other defendants were not served even at the time when the application for setting aside the impugned order was filed by the petitioners herein. The trial Court, in my view, has in a perfunctory manner dismissed the application by merely observing that the reasons are vague. In my view, filing of WP. 8286-10 - 6 - written-statement is a substantive right of the defendants and while rejecting application for permitting to file the written-statement beyond the period of 90 days, the court has to give cogent reasons. In my view, the trial Court has in one sentence, without giving cogent reasons, has observed that the ground which is mentioned in the application is vague. After having perused the application, I find that sufficient grounds had been mentioned by the petitioners herein for condonation of the delay since the defendants had stated that a decision was taken to file a joint written-statement, and therefore, they were waiting the other defendants to be served and that other defendants who are residing elsewhere, on account of illness of members of the defendants’ family, could not come together. These grounds, in my view, ares sufficient for the purpose of permitting the defendants to file the written-statement, particularly when the other defendants were still to be served. The impugned order is, therefore, set aside. The trial court is directed to permit the petitioners to file written-statement on record. Civil Writ Petition is, accordingly, allowed and disposed of in above terms. [ V. M. KANADE J.]