1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5658 OF 2008 1] Balu s/o. Dattarao Pawar 2] Taibai w/o. Govind Pawar 3] Ramchandra s/o. Namdeo Buchale 4] Pralhad S/o. Dattrao Pawar . .. Petitioners Versus 1. Adinath s/o. Raosaheb Pawar. 2. Trimbak s/o. Raosaheb Pawar. ..Respondents. -- Mr. S.B. Ghatol Patil, Advocate for the petitioners Mr. R.R. Bagal, Advocate for respondents. CORAM : B.R. GAVAI, J. DATE : 24TH JUNE, 2009. ORAL ORDER :- 1. Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing. 2 2. By way of present petition, the petitioner challenges the order dated 16th August, 2008, passed by the learned Civil Judge (Junior Division), Purna thereby rejecting the application filed by the present petitioner for setting aside `No W.S.' order and for permitting him to file written statement.~ 3. The respondents/plaintiffs have filed a suit for removal of encroachment, recovery of possession and mesne profits. The suit summons were received by the petitioners/defendants on 14th March, 2008. However, since petitioners did not file written statement, within the stipulated period of 90 days, an order of `No W.S.' came to be passed on 13th June, 2008. Thereafter, an application for setting aside the `No W.S.' order, alongwith written statement, came to be filed by the present petitioners. The same was rejected by the learned trial court vide the impugned order. Hence, the present petition.~ 3. Shri S.B. Ghatol Patil, learned counsel appearing on behalf of the petitioner submits that the calculation of 90 days is wrong. He, therefore, submits that the learned trial court has wrongly rejected the application. 4. As against this, Shri Kulkarni, learned counsel appearing on behalf of the respondent submits that no case is made out for interference in the impugned order.~ 5. The Apex Court in the case of " Kailas Vs. Nankhu" reported in 2005 AIRSCW 2346, has held that though the time schedule provided by Order 8 Rule 1 of CPC is directory, extension of time has to be granted only for exceptional circumstances occasioned by reasons beyond the control of the defendant and where grave injustice would occasion if time is not extended.~ 3 6. In the present case, it can be seen that the petitioner was under a bonafide mistake regarding counting of days. Apart from this, there is delay of only 3 days. In that view of the matter, I am inclined to allow the writ petition.~ 7. Rule is made absolute in terms of prayer clauses (B) and (C). However, written statement of the petitioners is permitted to be taken on record subject to his depositing costs, which are quantified at Rs.2,000/-. The costs to be deposited in the trial court within a period of 4 weeks from today. On deposit of costs as aforesaid by the petitioners, the respondent would be at liberty to withdraw the same. It is made clear that on failure to deposit costs within the aforesaid period the writ petition shall automatically stand dismissed.~ [B.R. GAVAI, J.] grt/