1 WP 2487 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2487 OF 2011 Harish Vallabhlallji Goswami and Anr. ...Petitioners Vs. Himmat Singh Chandan Singh and Anr. ...Respondents ----- Mr.Shashank S. Fadia for Petitioners Mr.A.B. Dubey i/b. Bharat Viashnawa & Co. for Respondent NO.1 Mr. A.S. Gadkar for Respondent No.2 ----- CORAM: V.M. KANADE J. DATED: 6th April, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioners and the Respondents. 2. The Petitioners are aggrieved by the order passed by the Trial Court dated 23rd November, 2009 on an application filed by them at Exhibit 37. The Petitioners are the original Defendant Nos.1 and 3. The Respondents-Plaintiffs filed the suit for declaration that the Plaintiffs are the tenants in the suit premises. An application was filed for taking the written statement on record and for condonation of delay in filing the written statement. There was a delay of about 22 months. The 2 WP 2487 of 2011 Trial Court rejected their application for condonation of delay by the impugned order. Being aggrieved by the said order, the Petitioners filed this petition under Article 226 and 227 of the Constitution of India. 3. The learned counsel for the Respondents -Original Plaintiffs, on instructions, fairly conceded that he has no objection if the written statement is taken on record and the suit is decided on merits. Apart from that, the Petitioners in their petition have given the reasons why the written statement could not be filed in time. It is stated that initially, Habib Balsania was on record as their advocate. He, however, expired on August, 2008. Thereafter, Advocate Bharat Mehata filed his Vakalatnama and thereafter, M/s. Shah and Lapasia filed their Vakalatnama. It is the case of the Petitioners that their new advocates M/s. Shah and Lapasia were under the impression that the previous advocate had filed the written statement. However, after enquiry was made, it was found that no written statement was filed. It is submitted that, therefore, there is a delay in filing the written statement. 4. In my view, sufficient cause has been shown by the Petitioners for condoning the delay in filing the written 3 WP 2487 of 2011 statement. It is no doubt true that the written statement is to be filed within 30 days or within 3 months thereafter. However, the Apex Court has held in several cases that the said provision is under Order 8 Rule 1 not mandatory but it is directory and the Court is competent to condone the delay if it is found that sufficient explanation has been given by the Defendants by not filing the written statement in time. 5. In my view, the Petitioners cannot be penalised on account of default, if any, on the part of the previous advocates. In the interest of justice, therefore, even otherwise, the delay ought to have been condoned by the Trial Court. The Impugned order, therefore, is set aside. The delay caused in filing the written statement is condoned. The Petitioners shall file the written statement within four weeks. The trial, however, is expedited. The Trial Court shall decide the suit as expeditiously as possible and, in any case, on or before 31st December, 2012. 6. The learned counsel appearing on behalf of the Respondent No.2 submits that the Respondent No.2 has also filed the suit being R.A.D. Suit No. 496 of 2007 against the Petitioners and the Respondent No.1. It is 4 WP 2487 of 2011 submitted that the said suit may also be expedited. In my view, it is not necessary to give any separate direction. The respondent No.2, is otherwise at liberty to file application in the Trial Court. Writ Petition is disposed of. (V.M. KANADE J.)