1 wp8212-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 8212 OF 2011 M/s Dreamland Restaurant .. Petitioner Versus Suraj Darshan Co-op. Housing Society Ltd. and others .. Respondents Mr. R. A. Thorat a/w Mr. /ameet A. Palkar for the petitioner Mr. M. P. Vashi i/by M.P. Vashi & Associates for respondent No.1 Mr. R. N. Kachare for respondent no.2 CORAM : R. Y. GANOO, J. DATED : 17rd October, 2011 P.C. 1. The petitioner was joined as defendant no.1 in the L. C. Suit No. 249 of 2007 at the request of respondent no.1. It is submitted by the petitioner that copy of amended plaint was served upon the petitioner- a partnership firm on 15th September, 2010. Written Statement was not filed in the first 30 days. The matter was adjourned to 26th November, 2010. On that day, the petitioner remained absent before the Court and there was no application seeking time to file written statement on behalf of the petitioner. Consequently, the learned Judge of the City Civil Court, Dindoshi Division passed “No Written Statement” order on 26th November, 2010 against the petitioner. Thereafter, the petitioner filed Notice of Motion No. 1464 of 2011 in June, 2011 praying for 2 wp8212-11 setting aside the "No Written Statement" order passed on 26th November, 2011. That Notice of Motion was dismissed on 10th August, 2011. This order dated 10th August, 2011 is challenged in this petition. 2. I have heard learned advocates on both sides. 3. Certified copy of the "No Written Statement" Order passed by the learned Judge of the City Civil Court, Dindoshi Division was tendered in the Court. The same is taken on record. 4. The learned advocate for the petitioner submitted that the learned Judge of the Civil Court should have shown indulgence to the petitioner and by awarding costs, the Notice of Motion should have been granted. According to the learned advocate for the petitioner, by grant of Notice of Motion, no prejudice would have been caused to respondent no.1-original plaintiff. 5. I have considered the submissions advanced by the learned advocate for the petitioner. In the first place, the petitioner did not file written statement within 30 days. It was open for the petitioner to make an application and seek time to file written statement within extended period upto 90 days. No such attempt was done by the petitioner even on 26th November, 2010 when the matter was on board. Consequently, the Court passed the order of "No Written Statement". 6. It was sought to be showed by the learned advocate for the petitioner that the learned Judge should have waited till lapse of 90 days from the date of service of summons. Looking to the provisions of the Civil Code Procedure 3 wp8212-11 (Order VIII Rule 1) concerning filing of the written statement, I am not inclined to accept this argument. Extended time of 60 days is to give a chance to the defaulting party to make a request to the Court to grant the additional time upto 90 days and then the Court has power to grant time. The petitioner did nothing and this how, the Court has exercised his jurisdiction and has passed "No Written Statement" order. After passing of the "No Written Statement" order, an application/Notice of Motion for setting aside the "No Written Statement" order is filed after about 8 months. In the affidavit in support thereof, no convincing reasons are given to suggest that the Motion should have been considered by the learned judge in his favour. The affidavit in support does not mention when the petitioner came to know about the "No Written Statement" order. The petitioner states that it had engaged advocate and it was under impression that the written statement will be prepared and will be filed by its advocate. Thereafter the affidavit in support filed by the petitioner’s partner shows that due to difficulties he could not contact the advocate and written statement remained to be filed. The reasons given paragraph 1 of the affidavit in support of the Notice of Motion are not convincing so as to condone the delay. 7. It was sought to be argued by the learned advocate Mr. Thorat that looking to the quantum of delay, the Court should have held in favour of of the petitioner by awarding cost. I am not inclined to accept this argument. In order to have the "No Written Statement" order set aside, it was necessary to state 4 wp8212-11 convincing reasons. As the reasons are not convincing relief cannot be granted to the petitioner. 8. Arguments advanced by the learned advocate for the petitioner on that count that if "No Written Statement" order is set aside no prejudice will be caused to the petitioner, cannot be accepted. After following due process, an order the order of "No Written Statement" is passed. On account of the said order, averments made by respondent no.1 in the plaint have gone unchallenged. That has resulted into certain situation in favour of the respondent no.1. In the absence of good reasons, that favourable situation cannot be converted into unfavourable situation for respondent no.1. 9. For the reasons mentioned aforesaid, I am not inclined to interfere with the impugned order by which the Notice of Motion No. 242 of 2011 was dismissed. 10. The Petition stands dismissed at the stage of admission. There shall be no order as to costs. (R. Y. GANOO, J.)