( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1272 OF 2010 Kishanrao Raghvendra Kulkarni and another PETITIONERS VERSUS Sunil Venkatrao Kulkarni RESPONDENT .... Mr. M.A. Kandharkar, advocate for the petitioners. Mr. Murar Deshpande, advocate for the respondent. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th August, 2010] PER COURT : 1. By this petition, the petitioners challenge order dated 8th January, 2010 whereby his application for allowing them to file written statement came to be dismissed. 2. The petitioners are original defendants No. 1 and 3. According to them, the original defendant No. 2 used to look after the litigation. They submit that the respondent (plaintiff) withdrew the suit against the said defendant No.2, without knowledge of the other respondents. They further submitted that the petitioner No. 1 was suffering from illness due to old age and that the petitioner No. 2 was absent ( 2 ) because already, an advocate was engaged for and on behalf of all the defendants. They could not file the written statement because due to old age, the petitioner No. 1 failed to attend and give instructions to the advocate whereas the petitioner No. 2 relied upon the original defendant No. 2. The trial Court rejected their application on the sole ground that it was filed after more than 90 days from date of service of the summons. The trial Court held that the reasons furnished in support of the delay condonation application were not satisfactory and, therefore, the delay was uncondonable. 3. Heard learned counsel for the parties. 4. The impugned order shows that the trial Court was much impressed by the fact that the application was not filed within 90 days from the date of service of the summons. It is true that as per the amended provision of Order-VIII Rule-1 of the Code of Civil Procedure, the written statement is required to be filed within 30 days after service of the summons and the outer limit is of 90 days. Still, however, Order-VIII Rule-1 of the Code of Civil Procedure is directory in nature. Obviously, when there is sufficient explanation given, the procedural deficiency cannot be utilized as a lever to scuttle ( 3 ) the right of filing the written statement. The petitioners’ application is rejected by recording vague reason that it was filed after 90 days. The learned Civil Judge did not independently consider the explanation given in paragraphs No. 2 and 4 of the application (Exh-35) filed in the suit (R.C.S. No. 79/2009). In this view of the matter, the petition is allowed. The impugned order is set aside, subject to payment of costs of Rs. 3000/- (rupees three thousand) which shall be deposited in the trial Court within period of two (2) weeks from today. If the costs amount is not deposited within two (2) weeks, the right to file written statement may be deemed as forfeited. The written statement shall be filed alongwith the payment of the costs, if paid in two (2) weeks, if the same is not already filed and placed on record. The petition is accordingly disposed of. 5. The parties may act on copy of this order, duly authenticated by the Court Shirestedar. [V.R. KINGAONKAR] JUDGE NPJ/wp1272-10 ( 4 )