1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4492 OF 2009 Vishwanath Kashinath Tambe .. Petitioner versus Narayan Ramchandra Umbe & Ors. .. Respondents Mr.Surel S. Shah for the petitioner. Ms.Pallavi Dabholkar for respondent No.1. CORAM : A.S.OKA, J. DATE : 5th October 2009. P.C: . I have heard the submissions of the learned counsel appearing for the parties. Petition is taken up for final disposal at admission stage. The petitioner is the 1st defendant in a suit filed by the 1st respondent. The suit is for possession of immovable property. The petitioner was served with the summons. On 13th December 2007 the petitioner vide application at Exhibit 12 applied for grant of time to file written statement. The trial Court granted time. On 5th February 2008 and on 19th March 2008 applications were made by the petitioners for grant of time. In the said applications it is stated by the advocate for the petitioner that written statement is kept ready but the petitioner is unable to sign the same on account of his illness. The said applications were rejected by the trial Court and an order was passed of directing that the suit will proceed without written statement. By application 2 at Exhibit 14, the petitioner made a prayer for setting aside the said order and for taking the written statement on record which was tendered alongwith the said application. By the impugned order the learned trial Judge rejected the said application. 2. The learned counsel appearing for the petitioner submitted that the applications earlier made by the petitioner showed that written statement was kept ready but the same could not be filed as it was not signed by the petitioner on account of illness. He submitted that considering the grounds in the application the same ought ot have been allowed subject to payment of costs. The learned counsel appearing for the 1st respondent-original plaintiff opposed the petition by pointing out that the contention raised by the petitioner that the written statement was ready was raised after expiry of period of 90 days. Her submission is that the trial Court has recorded cogent reasons for not granting discretionary relief to the petitioner. 3. After having considered the submissions, I am of the view that trial Court ought to have allowed the application. It is true that the petitioner was served with the summons on 23rd September 2007. The applications earlier made for grant of adjournment for filing written statement were granted. Moreover, the application made at Exhibit 13 on 9th March 2007 recorded that written statement was ready which could not be signed by the petitioner. The Apex Court has held that the provision of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 providing for outer limit to file written 3 statement is directory. 4. Considering the averments made in the applications at Exhibits 13 and 14, the trial Court ought to have permitted the petitioner to file written statement which was tendered alongwith the application at Exhibit 14. The trial Court could have always compensated the 1st respondent by awarding appropriate costs. Hence, the petition must succeed. The amount of costs is quantified at Rs.10,000/-. The learned counsel appearing for the petitioner has handed over a demand draft in the sum of Rs.10,000/- drawn in favour of the 1st respondent to the advocate for the 1st respondent. The advocate for the 1st respondent has accepted the same without prejudice to the rights and contentions of the 1st respondent. 5. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 24th April 2008 is quashed and set aside and application made by the petitioner at Exhibit 14 is hereby allowed. (b) As recorded earlier, amount of cost of Rs.10,000/- has been paid to the 1st respondent. (c) The petition is allowed in above terms. (A.S.OKA,J)