1 WP 3116/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3116 OF 2010 M/s Jaykaybee Constructions .. Petitioner V/s Vijaykumar Jalundhwala & Anr. .. Respondents Mr. Rajesh S. Datar for the petitioner. Mr. Atul G. Damle for the respondents. CORAM : D.G. KARNIK, J. DATE : 28TH JULY 2010 P.C. : 1. Heard. 2. By this petition, the petitioner challenges the order dated 17 March 2010 passed by the learned 4th Joint Civil Judge, Senior Division, Thane, rejecting the application of the petitioner (original defendant nos.2, 3 and 4) for condonation of delay in filing of the written statement. 3. The writ of summons was served on the defendants some time in the year 2004. They did not file the written statement for 6 long years and made an application for condonation of delay in filing 2 WP 3116/10 the written statement on 17 March 2010. 4. Mr. Datar, learned counsel for the petitioner, submitted that the provisions of Order 8 Rule 1 of the Code of Civil Procedure (for short “the Code”) are not mandatory and have been held to be directory in the case of Kailash v. Nanhku, AIR 2005 SC 2441, and therefore the delay can be condoned. In the said decision, the Supreme Court has held that the provisions of Order 8 Rule 1 of the Code are not mandatory but at the same time has cautioned that it should not be misunderstood as nullifying the entire force and impact, the entire life and vigour, of the provision in its amended form. By adopting delaying tactics, the defendants gain time and cause delays in the trial which should not be lightly allowed. In paragraph 42 of the decision, the Supreme Court observed: “42. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of 3 WP 3116/10 hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.” In the present case, the delay is not only gross but has not occurred in the circumstances beyond the control of the defendants. In the application for condonation of delay, it is vaguely alleged that on account of illness of defendant nos.2, 3 and 4 they were unable to 4 WP 3116/10 move out of bed. No medical certificate in that regard has been filed. No affidavit in support of the averment has been filed. What was the nature of the illness of defendant nos.2, 3 and 4, who are incidentally are partners of defendant no.1, is not mentioned. It is not mentioed what were the sources of their earnings during the course of 6 years when they were unable to move out of bed. The application, to say the least, was vague and unsupported by any material evidence. 5. In the circumstances, the trial court committed no error in rejecting the application for condonation of delay in filing the written statement. No interference in exercise of writ jurisdiction under Article 227 of the Constitution of India is called for. The writ petition is rejected summarily. (D.G. KARNIK, J.)