1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 8521 OF 2010 1 Dattu Ramdas Padule age 51 years, occ. agril 2 Shalan Dattu Padule age 49 years, occ. household Both r/o Ganesh Wadi Taluka Karjat, Dist. Ahmednagar. PETITIONERS VERSUS 1 Balbhim Ramdas Padule age 39 years, occ. agril 2 Sakharam Ramdas Padule age 54 years, occ. agril 3 Mahadeo Ramdas Padule age 48 years, occ. agril 4 Lahu Ramdas Padule age 45 years, occ. agril 5 Subhadrabai Ramdas Padule age 76 years, occ. agril 6 Dropada Mohan Maharnavar age 49 years, occ. agril 7 Anusaya Sakharam Padule age 49 years, occ. agril 2 8 Tukram Rakhmaji Padule age 52 years, occ. agril 9 Dada Rakhmaji Padule age 50 years, occ. agril 10 Laxman Rakhmaji Padule age 48 years, occ. agril 11 Pandurang Rakhmaji Padule age 47 years, occ. agril 12 Appa Babu Kaygude age 62 years, occ. agril 13 Sakharbai Makaji Shriram age 58 years, occ. agril All r/o Ganeshwadi, Tq. Karjat Dist. Ahmednagar. .. RESPONDENTS Mr. Girish Rane, advocate for the petitioners. Mr. N.C. Garud, advocate for respondents. ===== CORAM : R. M. BORDE, J. DATE : 28 th OCTOBER, 2010. ORAL JUDGMENT : 1 Heard. 2 Rule. Rule made returnable forthwith. With the consent of the parties 3 the petition is taken up for final disposal at admission stage. 3 Application tendered by the petitioners / original defendants requesting for setting aside ‘No WS’ order passed by the court on 17-2-2010 and for acceptance of the written statement has been turned down by the trial court in view of order passed on 30-6-2010 below exh. 32 in Regular Civil Suit no. 24/2009. 4 The suit is presented by the respondents / original plaintiffs claiming partition and separate possession of the ancestral property. The suit came to be presented on 19-1-2009 whereas the trial court directed issuance of suit summons on 10-2-2009. Defendants were served with the summons on 3-12-2009 however, they failed to present written statement on the given date. As such, trial court passed order on 17-2-2010. Petitioners herein presented application requesting the court to set aside ‘No WS’ order on 17-6-2010. However, the application came to be rejected by the trial court in view of order passed on 30-6-2010. It is observed by the trial court that there is delay of about 90 days in presenting the application. It is the contention of the petitioner that the trial court has committed an error in passing ‘No WS’ order before expiry of period of 90 days from the date of service of 4 summons and as such the order ought to have been recalled by the trial court. It is also further contended that some time was required for securing copies of the document in preparing defence by the concerned defendants. 5 The reason demonstrated appears to be proper and looking to the facts and circumstances of the case and the extent of delay, the trial court ought to have exercised discretion in favour of the petitioners. The provisions of Order 8 Rule 1 of the Code of Civil Procedure are directory in nature and if the defendant exhibits just cause he can be permitted to present written statement. Considering these aspects, I deem it appropriate to extend further opportunity to the defendants / petitioners herein to present their written statement however, subject to payment of cost. Writ petition therefore stands allowed. Order passed on 30-6-2010 below exh. 32 in Regular Civil Suit no. 24/2009 is quashed and set aside and the application tendered by the petitioners shall be deemed to have been allowed subject to payment of cost of Rs.1,000/- payable to the plaintiffs within a period of 4 weeks from today. Rule is accordingly made absolute. Ad-interim stay granted by this court shall stand vacated. 5 6 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp8521.10.odt