1 WP NO. 1049/11 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1049 OF 2011 Shahaji Govind Yadav : Petitioner versus Sate of Maharashtra and ors. : Respondents. Mr. Datta Mane for the Petitioners Mr. S.D.Rayrikar AGP for Respondent No.1 Mr. S.S. Salunkhe for Respondent Nos. 2 to 4 CORAM:­ B.R. GAVAI, J DATED :­ FEBRUARY 10, 2011. P.C. 1 By way of the present Petition, the Petitioner challenges the order dated 7th January 2011 vide which, the application filed by the present Petitioner for setting aside "No Written Statement" order and for permission to place the written statement on record, came to be rejected. 2 A suit has been filed by the Respondents/Plaintiffs for a decree of partition and declaration. In the said suit, suit summons were issued on the Defendant on 16th September 2004. Since the written statement was not filed within a period of 30 days and, even thereafter it was not filed with the extended period of 90 days, "No Written Statement" order came to be passed on 28th February 2005. An Application below Exhibit­77 filed by the Defendants for setting aside the "No Written Statement" order came to be rejected. Hence the present Petition. 2 WP NO. 1049/11 3 The learned counsel for the Petitioner submits that if the Petitioner is prevented from filing the written statement on record, an irreparable loss would be caused to him. It is further submitted that since the Plaintiffs had informed the Petitioner that the Plaintiffs were willing to settle the matter, the Petitioner/Defendant did not find it necessary to file the written statement. 4 The learned counsel for the Respondents/Plaintiffs, on the contrary, opposes the Petition and submits that no such talks were being held. He, therefore, submits that no interference is warranted in the present Petition. 5 Provision of Order 8 Rule 1 of the Code of Civil Procedure as amended by amendment in the year 2002, require that the written statement has to be filed within a period of 30 days from the receipt of the suit summons. Proviso to Order 8 Rule 1 permits the written statement to be filed within an extended period of 90 days from the receipt of the suit summons, if the defendant makes out a case for not filing the written statement within the stipulated period. No doubt the said provision is held to be directory and it has been held that the Court is not without the powers to permit the defendant to place his written statement on record even after 90 days. However, it has been held that the said power has to be exercised in an exceptional circumstances and only when the defendant makes out a case that for the reasons beyond his control he was not in a position to file the written statement within a period of 3 WP NO. 1049/11 90 days. In the present case, only reason given by the petitioner is that talks of settlement were going on. This position is specifically denied by the Respondents/Plaintiffs. One could have understood the delay of couple of months on this ground. However, it is difficult to believe that for a period of 7 years, the Petitioner was waiting for settlement talks and therefore, did not find it necessary to file the written statement. 6 In that view of the matter, no perversity is noticed in the approach of the trial Court. The Petition is therefore rejected. (B.R. GAVAI, J)