1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5823 OF 2008 1.Sitabai w/o. Ramkrushna Kale and another .. Petitioner Versus 1. Khusari Ahmed Sidhiqui S/o. Ahmed Mainoddin Khatib and othes. .. Respondents -- Mr. S.B. Bhapkar, Advocate for the petitioner Mr. K.M. Babhulgaonkar, Advocate for respondent NOs. 1 to 3. CORAM : B.R. GAVAI, J. DATE : 11TH JUNE, 2009. ORAL ORDER :- 1. By way of present petition, the petitioner challenges the order dated 15th April, 2008, vide which the application filed by the present petitioner for setting aside the NO W.S. Order and for permission to place the written statement on record came to be rejected. 2 2. The respondents have filed a suit for possession alleging that the petitioner has encroached upon the suit premises. The petitioner received a notice on 16th August, 2006. Thereafter, the matter was adjourned on various dates and since the petitioner did not file written statement, No W.S. order came to be passed on 1st February, 2007. 3. Shri Bhapkar, learned counsel for the petitioner submits that since the petitioner was suffering from Cancer and was taking treatment, he could not file the written statement within the stipulated time. He submits that the learned trial court has not taken into consideration this aspect while rejecting the application. 4. Shri Babhulgaonkar, learned counsel for the respondents, on the contrary submits that the petitioner was given ample opportunity for filing the written statement. However, he has not taken any steps for filing the written statement within stipulated period and as such, no interference is warranted. 5. Perusal of the provision of Order VIII Rule 1 would reveal that the defendant is required to file written statement within 30 days from the date of service of summons on him. However, the said 3 period of 30 days can be extended for a period of 90 days and the defendant is required to file the written statement within the extended period of 90 days. No doubt, it has been held that the provision of Order VIII Rule 1 are not mandatory and it is directory. It has been held that if the defendant points out certain compelling circumstances which prevented him from filing written statement within initially within 30 days and thereafter within 90 days, then in an exceptional case the court would empowered to permit a party to file the written statement even beyond the period of 90 days. However, the said power has been held to be a discretionary power. 6. In the present case, the suit summons were served upon the petitioner on 16th August, 2006. Thereafter, the matter was adjourned on various dates 24/8/2006, 8/9/2006, 8/9/2006, 10/10/2006, 13/11/2006, 12/12/2006, and 15/1/2006 and since the written statement was filed within the said period, `No W.S.' order came to be passed. 7. The learned trial court, on the basis of the documents submitted by the petitioner has found that only one document establishes that the petitioner was required to go to Bombay pertaining to his treatment on 3/1/2007. It can thus be seen that the petitioner was 4 required to file the written statement prior to 16/9/2006 and if not filed by that date, in view of the proviso to Order VIII Rules 1, by 16th November, 2006. However, a period of more than one year was given by the learned trial court to the petitioner and after a period of almost one year and 4 months from the date of receipt of suit summons, `No W.S.' order came to be filed. 8. As already stated hereinabove, the learned trial court has found that except on 3/1/2007, there was no other document which establishes that the petitioner was in such a situation that he could not have filed the written statement. 9. The scope of interference in the extraordinary jurisdiction under Article 227 would be limited. Only if it is found that the discretion exercised by the trial court has been exercised in a perverse manner, this court would be slow in interfering with the order. 10. No perversity could be found with the approach adopted so as to warrant interference in exercise of jurisdiction under Article 227 of the Constitution. Hence, writ petition is dismissed. grt/- [B.R. GAVAI, J.]