1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No.5009/2007 Vijay s/o Manoharji Kharde Vs. M/s. Provincial Automobile Co.Ltd. Nagpur. ------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. LAVANDE, J. DATED : 18/06/2008. Heard Mr. Mardikar, learned counsel for the petitioner and Mr. Johrapurkar, learned counsel for the respondent. By the petition, the petitioner challenges the order dated 3.8.2007 passed by 3rd Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 690/2004 by which application dated 8.8.2006 seeking recall of order dated 13.7.2007 by which the trial Court had disallowed the prayer of the petitioner to file written statement, has been dismissed. The petitioner is original defendant in the above suit filed by the respondent. The petitioner was served on 15.6.2005 with the summons. He did not file written statement within the time stipulated under Order VIII Rule 1 of the Code of Civil Procedure. Thereafter on 13.7.2006 2 he filed an application seeking leave to file written statement which was rejected, inter alia, on the ground that no affidavit was filed in support of the application. The trial Court also held that no sufficient and reasonable ground were made out to allow the application. The petitioner filed another application dated 8.8.2006 for recalling the order dated 13.7.2006 which has been dismissed by the impugned order. While passing the impugned order, the trial Court has held that second application was by way of review of the first application and the petitioner had failed to satisfy the Court any error apparent on the face on record. The trial Court also held that the petitioner had not made out any exceptional case for filing written statement beyond period stipulated under Order VIII Rule 1 of the Code of Civil Procedure. Mr. Mardikar, learned counsel for the petitioner at the outset submitted that the application filed by the petitioner was under Section 151 of the Code of Civil Procedure and not an application for review of order dated 13.7.2006. He further submitted that the petitioner had not filed written statement since he had approached the counsel for the plaintiff appearing in the suit for settling the dispute and thereafter by joint pursis dated 6.2.2006 the matter was 3 referred to the Lok Adalat for amicable settlement. According to Mr. Mardikar, the defendant can file written statement after the period of 90 days if in case exceptional case is made out and the petitioner has made out an exceptional case. Per contra, Mr. Johrapurkar, learned counsel for the respondent submitted that the conduct of the petitioner dis-entitled him to claim any relief from this Court in exercise of discretionary jurisdiction under Articles 226 and 227 of Constitution of India. He further submitted that there is no jurisdictional error committed by the trial Court while passing the impugned order. Therefore, no interference is called for by this court. Having considered the submissions made by learned counsel for the parties and having perused the record, I find that no case has been made out for interference by this Court. I am unable to accept the statement of Mr. Mardikar that the application dated 8.8.2006 filed by the present petitioner was maintainable under Section 151 of the Code of Civil Procedure. The trial Court was right in holding that the petitioner in fact was seeking review of the order dated 13.7.2006 passed by the trial Court and the petitioner had not made out case for review in any case but even in the petition, the petitioner 4 had not given any cogent reason as to why he did not file written statement from 15.6. 2005 i. e. date of service of summons served on him till joint pursis were filed on 6.2.2006. In order to justify filing of written statement after the period of 90 days, the defendant has to make out an exceptional case in view of the provision of Order VIII Rule 1 of the Code of Civil Procedure. The trial Court is right in holding that the petitioner has not made out any such case. Therefore, no fault can be found with the impugned order. I find no ground to interfere with the impugned order. hence, the petition is rejected with no order as to costs. JUDGE Ambulkar.