1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3322 OF 2008. Sy.Yunus S/o Sy.Ayub ... Petitioner. Versus Sayyed Ali S/o Sy.Imam and others ... Respondents. ... Mr.S.V.Mundhe, advocate for the petitioner. Mr.J.R.Patil, advocate for the Respondent Nos.1 and 2. Respondent Nos.3-A, 3-C, 3-D,3-E and 5 served. ... CORAM : V.R.KINGAONKAR,J. Date : 24.06.2009. PER COURT 1. By this petition, the original defendant No.5 seeks to challenge order rendered by the learned Civil Judge (S.D.), Ahmedpur, on application (Exh.74) in RCS No.239/2003, whereby the trial Court declined to accept his written statement. 2 2. The suit (RCS No.239/2003) is filed by the Respondent No.1 for partition and separate possession in respect of the properties which are indicated in the claim clause. The petitioner (defendant No.5) claims his rights through defendant No.1 from whom he allegedly received a part of the suit property by way of oral gift. He did not file written statement within the stipulated period of 90 (ninety) days after first appearance as contemplated U/o VIII Rule 1 of the C.P.C. He submitted an application dated 24.4.2006 for grant of time to file the written statement. Inspite of this he did not file written statement. After a couple of months, on 15.6.2006 he gave a purshis (Exh.72) requesting the trial Court to treat the written statement filed by the defendant No.1/4 on 16.12.2005 vide Exh.62 as his own written statement. In other words, he wanted to adopt the written statement of the original defendant No.1/4. The written statement filed by the defendant No.1/4 itself was beyond period of 90 (ninety) days and the delay condonation application (Exh.62) filed by 3 the defendant No.1/4 came to be rejected. 3. It is pertinent to note that the original defendant No.1/4 and the present petitioner filed Review Application (Exh.74) against such order rendered by the trial Court. The Review Application came to be rejected on 13.2.2008. 4. In legal parlance there was no written statement filed by the petitioner before the trial Court. The application filed by the trial Court while rejecting the Review Application of the defendant No.1/4 is not challenged by the said defendant. It has been challenged only by the present petitioner i.e. defendant No.5. The necessary fall out of such orders is that the written statement presented by the original defendant No.1/4 is not before the trial Court. Obviously, there is no question of adoption of such a written statement by the petitioner. The Civil Procedure Code does not provide any specific provision to permit adoption of the written statement though there appears practice in this behalf. Needless to say, whatever the 4 petitioner wanted to adopt as a written statement does not exist in the eye of law. So far as separate reasoning given by the petitioner is concerned, it is explicit that he vaguely stated that he could not get necessary documents to prepare his written statement. There was no question of his obtaining of separate documents when he desires to adopt the same written statement put forth by the defendant No.1/4. The grounds stated in his application are not convincing, legal and proper. The Apex Court in "Mohammed Yusuf Vs. Faij Mohammad and others" (2009) 3 Supreme Court Cases 513, held that though it has been held that proviso appended to Order VIII Rule 1 of the C.P.C. is directory in nature, yet, the defendants may be permitted to file written statement after the expiry of period of 90 (ninety) days only in exceptional situation. There hardly exists any extraordinary reason and exceptional situation in the present case. Besides, the rights of the petitioner are dependent on the rights of the original defendant No.1 from whom he is claiming the oral gift. The original defendant No.1 has 5 already contesting the suit and I am told that it is at the terminal stage of the hearing. In this view of the matter, the petition is destitute of substance and is as such dismissed. (V.R.KINGAONKAR,J.) asp/office/wp332208