Judgment : 1. Heard learned Counsel for the parties. Rule. Rule is made returnable forthwith and by consent of the parties, taken up for hearing. 2. This Court, by order dated 26th April, 2011, issued notices to the respondents. The said order indicates that the matter would be finally disposed of at admission stage. In pursuant to the said order and the order dated 16th December, 2011, the writ petition is finally heard. The Counsel for the petitioners submits that on 9th March, 2010, the petitioners filed the suit for declaration of ownership and perpetual injunction. The trial Court issued summons for settlement of issues. On 18th March, 2010, the suit summons were served on the respondents. On 22nd March, 2010, the respondents appeared in the suit and filed application below Exh.37 seeking time to file written statement. The trial Court allowed the application and granted time till 8th April, 2010. On 8th April, 2010, the respondents again filed application below Exh.38 seeking time to file written statement. The trial Court allowed the application and granted time to file WS till 19th April, 2010. On 19th April, 2010, once again respondents filed application below Exh.39 seeking further time to file WS. The said application was rejected by the trial Court. ON 28th April, 2010, the respondents filed application below Exh. 40 u/s 11 of the Code of Civil Procedure for rejection of the suit on the ground of res judicata. The trial Court rejected the application on 19th July, 2010. On 10th August, 2010, the respondents filed an application below Exh.44 u/s 10 of the C.P.C. to stay the suit. However, the said application came to be rejected by order dated 4th December, 2010. The petitioners, who are original plaintiffs, filed affidavit in lieu of examination-in-chief of petitioner no.1. On 23rd December, 2010, the respondents filed 'evidence close purshis.' On 23rd December, 2010, the respondents filed 'evidence close purshis' On 2nd February, 2010 the respondents cross-examined the P.W.1. On 10th February, 2011, the petitioners filed affidavit in lieu of examination-in-chief of Sudhakar, Madhukar, Harischandra, Dagdu, Janardhan. On 15th February, 2011, the pettiners filed affidavit in lieu of examinationin-chief of Sanjiv and Sudesh. The petitioners' witnesses were examined by the respondents. On 21st February, 2011, the petitioners filed 'evidence close purshis'. 3. On 10th February, 2011, the petitioners filed affidavit in lieu of examination-in-chief of Sudhakar, Madhukar, Harischandra, Dagdu, Janardhan. On 15th February, 2011, the pettiners filed affidavit in lieu of examinationin-chief of Sanjiv and Sudesh. The petitioners' witnesses were examined by the respondents. On 21st February, 2011, the petitioners filed 'evidence close purshis'. 3. On 3rd March, 2011, the respondents filed application below Exh.64 for setting aside 'No W.S.' order and further for taking written statement on record. The petitioners herein filed say and resisted the application. By order dated 10th March, 2011, the learned Joint C.J.S.D. allowed the application below Exh. 64 subject to payment of costs of Rs.500/-. 4. According to the learned Counsel for the petitioners when the application for extension of time for filing written statement was rejected on 19th April, 2010, there was no occasion for the trial Court to allow the application of the respondents for setting aside the said order and further to take written statement on record. According to the Counsel for the petitioners, the reasons stated in the application for extension of time are the same reasons which are taken in the application which was filed for setting aside the 'No W.S.' order. Therefore, according to him, if the application for extension of time to file W.S. was rejected, then on the same reasons another application preferred on 3rd March, 2011 for setting aside No W.S. order, should not have been allowed by the trial Court. The learned Counsel further submits that though the provisions of O. 8, R. 1 of the Code are directory in nature, only in exceptional cases where case is made out, the delay beyond 90 days can be condoned and written statement can be accepted. However, in the present case, the reason which is stated by the respondents in their application for setting aside 'No W.S.' order and further to take W.S. on record, are general in nature. There is reference in the said application that since SLP was filed by the petitioners, and due the pendency of the said SLP, the respondents could not procure the necessary documents for filing W.S. According to the learned Counsel for the petitioners, the respondents themselves, in their application, which was filed u/s 11 of the C.P.C. at Exh.40 before the trial Court, have stated that the appeal filed by the plaintiffs before the Supreme Court has been dismissed. According to the learned Counsel for the petitioners, the said application has been filed by respondents on 28th April, 2010. Therefore, the respondents were well aware that said SLP or appeal has been dismissed by the Supreme Court and, therefore, the said ground that due to pendency of the said SLP, the respondents could not collect the documents for filing written statement, could not have been accepted by the trial Court or said ground was not available to the respondents. It is further submitted that the trial Court has allowed the application for setting aside the 'No W.S.' order and also to take W.S. on record only on the ground that merely because the witnesses of the plaintiffs are cross-examined by the advocate of the defendants and merely because of that, it cannot be said that the respondents have intentionally not filed the W.S. within time. According to the learned Counsel for the petitioners, reasons recorded by the trial Court are totally different than what is stated in the application, which was filed by the respondents. The sum and substance of the arguments of the learned Counsel for the petitioners is that no exceptional case was made out by the respondents in their application for setting aside 'No W.S.' order and therefore, such application should not have been entertained by the trial Court. The learned Counsel for the petitioners fairly accepts the position that the provisions of O.8, R.1 of C.P.C. are held to be directory in nature by the Supreme Court. However, he submits that only in exceptional cases, the delay beyond period of 90 days can be condoned and then the defendants can be allowed to file W.S. However, in the facts of the present case, no such exceptional ground has been stated in the application at Exh.64/D which was filed for setting aside the 'No W.S.' order and therefore, according to the Counsel for the petitioner, in view of the law laid down by the Supreme Court in case of Mohammed Yusuf vs. Faij Mohammad and others [ (2009)3 SCC 513 ], the petition deserves to be allowed. He invited my attention to the para 11 of the said judgment and submitted that even the three Judge Bench of the Supreme Court has taken a view that there could be situations where even a procedural provision could be construed as mandatory. He invited my attention to the para 11 of the said judgment and submitted that even the three Judge Bench of the Supreme Court has taken a view that there could be situations where even a procedural provision could be construed as mandatory. Therefore, according to the learned Counsel for the petitioners, the petition deserves to be allowed. He also invited my attention to the judgment of the learned Single Judge of this Court in case of Shailaja S. Sawant (DR.) vs. Sayajirao Ganpatrao Patil [ 2004(2) Mh.L.J. 419 ] and in particular, para 31 of the said judgment. Relying on para 31 of the said judgment, the Counsel for the petitioners would submit that the reasons recorded while condoning the delay in filing the written statement should reflect the circumstances in which the discretion vested is exercised. Therefore, according to the Counsel for the petitioner, in the impugned order there are no any exceptional reasons, much less, cogent reasons, recorded and, therefore, the order impugned in this petition deserves to be quashed and set aside. 5. On the other hand, the learned counsel for the respondents invited my attention to the averments / pleadings in the petition and submitted that the petitioners have merely stated facts from para 1 to 17 of the petition. In para 18 only, it is stated that the delay caused for filing written statement due to pendency of litigation between the parties cannot be said to be sufficient ground. According to the learned Counsel for the respondents, there is no statement in the petitin that by setting aside 'No W.S.' order and further by accepting the W.S. filed by the respondents, any prejudice is caused to the petitioners. The learned Counsel also invited my attention to the impugned order and submitted that cogent reasons are assigned by the trial Court in setting aside the 'No W.S.' order and further allowing the respondents to place on record the W.S. The learned Counsel appearing for the respondents invited my attention to the reported judgment of the Supreme Court in case of Zolba vs. Keshao and Ors. [ AIR 2008 SC 2099 ] and in particular, paras 7 and 8 of the same. The learned Counsel for the respondents submitted that the provisions including the proviso to Order 8, Rule 1 of the Code are not mandatory but directory. [ AIR 2008 SC 2099 ] and in particular, paras 7 and 8 of the same. The learned Counsel for the respondents submitted that the provisions including the proviso to Order 8, Rule 1 of the Code are not mandatory but directory. The learned Counsel further submits that in the facts and circumstances of the present case and after appreciating the reasons disclosed in the application for setting aside 'No W.S.' order and further taking the W.S. on record, the trial Court has passed the impugned order. The said impugned order is permissible in the light of provisions of Order 8, Rule 1. The view taken by the trial Court is reasonable and this Court may not interfere with the impugned order in extraordinary writ jurisdiction. He also invited my attention to the reported judgment of the Supreme Court in case of Salem Advocate Bar Association, Tamil Nadu v. Union of India [ AIR 2005 SC 3353 ], and in particular, paras no.21 and 22 of the said judgment and submitted that there is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit.' Therefore, according to the learned Counsel for the respondents, the discretion exercised by the trial Court has been exercised judiciously and, therefore, this Court may not interfere in the impugned order. 6. I have given due consideration to the rival submissions of the parties. At the outset, it would be relevant to refer to the paragraphs 21 and 22 of the judgment of the Supreme Court in case of Salem Advocate Bar Association (supra), which read thus: 21. The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 22. In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1." 7. The said judgment is by three-Judges of the Supreme Court and the law laid down in the said judgment upon interpretation of Order 8 Rule 1 of C.P.C., holds good till the date. The provisions of O. 8 R. 1 are not mandatory and said are directory, has been concluded by the aforesaid pronouncement of the Supreme Court. However, the Honourable Supreme Court, in the said authoritative pronouncement, has given a rider that the order extending time to file written statement cannot be made in routine. Time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1. Therefore, the said judgment of the Supreme Court has been followed in subsequent judgments of the Supreme Court and the view expressed by the Supreme Court in case of Salem Advocate Bar Association (supra), has been reiterated by the Supreme Court in case of Zolba (supra). 8. In the light of aforesaid pronouncement of the Supreme Court, it is necessary to see the averments in the application filed by for setting aside the 'No. W.S.' order and further for taking W.S. on record. 8. In the light of aforesaid pronouncement of the Supreme Court, it is necessary to see the averments in the application filed by for setting aside the 'No. W.S.' order and further for taking W.S. on record. From perusal of the Exh.64/D, it appears that one of the reasons stated in the application for not filing the W.S. within 90 days, is that there was some appeal pending before the Supreme Court and in respect of that appeal, some documents were to be procured by the respondents and after that, W.S. was supposed to be filed and in the process, time was consumed. Therefore, from perusal of the averments in para 2 of the application, it appears that the respondents could not file the W.S. within 90 days since they wanted to obtain / get some documents in respect of pending appeal which was filed by the plaintiff before the Supreme Court. In para 3 of the said application, it is stated that the respondents are filing the W.S. and in the interest of justice, the said W.S. may be accepted, in case W.S. is not accepted, there will be irreparable loss to the respondents / defendants. 9. Bare perusal of the application filed for setting aside 'No W.S.' order and further to take W.S. on record, would make it clear that the principal ground which is stated in the application was that the respondents could not get necessary documents since the appeal was pending before the Supreme Court at Delhi and further the respondents also wanted to get some important documents in respect of said pending appeal and, in the process, there was delay in filing the written statement. The petitioners have filed say at Exh.66/D opposing the said application filed by the respondents for setting aside 'No W.S.' order and further to take W.S. on record. In para 6, it is stated that the plaintiff produced evidence, as the matter is posted for no W.S. hearing and no issues are framed. Therefore, if the written statement accepted at this stage, it will cause great injustice and irreparable loss to the plaintiff. Other contentions are also taken in the said say. 10. In para 6, it is stated that the plaintiff produced evidence, as the matter is posted for no W.S. hearing and no issues are framed. Therefore, if the written statement accepted at this stage, it will cause great injustice and irreparable loss to the plaintiff. Other contentions are also taken in the said say. 10. From perusal of the impugned order, the trial Court in para 2 of the same, has appreciated the contentions of the parties and observed that the dispute in respect of the suit property has reached to the Supreme Court from the trial Court. Parties have filed their different written statement / contentions at different places and, therefore, if the matter is taken from the trial Court to the Supreme Court, in the process, some time can be consumed in getting the relevant documents and, therefore, said reason can be a sufficient ground to condone the delay. Therefore, it appears that the trial Court has allowed the application for setting aside 'No W.S.' order and further to take W.S. on record, on the ground that some time has been spent by the parties in litigating from the trial Court to Supreme Court. Therefore, some time has been spent to obtain / procure necessary documents and it can be stated to be a sufficient cause for condoning the delay beyond 90 days in filing written statement and for setting aside 'No W.S.' order. 11. Exh.B to the compilation of the writ petition i.e. the applications preferred by the respondents for seeking adjournment for filing written statement, also states the reason that certain documents were not available and, therefore, time may be extended to file W.S. There is further application on 19th April, 2010 reiterating almost the same ground for extension of time. However, it appears that the trial Court declined to entertain the said application and ultimately, passed 'No W.S.' order. 12. It is true that right of the party to prosecute the litigation and that too, when civil rights of the party are involved in the matter, should not be taken away by technicalities. However, it appears that the trial Court declined to entertain the said application and ultimately, passed 'No W.S.' order. 12. It is true that right of the party to prosecute the litigation and that too, when civil rights of the party are involved in the matter, should not be taken away by technicalities. However, as held by the Supreme Court in case of Salem Advocate Bar Association (supra) in para 22, the order setting aside 'No W.S.' order and further to take W.S. on record, or condoning the delay beyond the period of 90 days in filing W.S., should not be passed in routine manner and only such orders can be passed in exceptionally hard cases. Therefore, in the aforesaid background and in the light of observations of the Supreme Court in case of Salem Advocate Bar Association (supra), if the averments in the application for setting aside 'No. W.S.' order, are examined, certainly it appears that the averments in the application are general in nature and too vague. No particulars are given about which document the respondents wanted to procure from the record of the appeal which was filed in the Supreme Court. It is not in dispute that the application was filed by the respondents u/s 11 of the Code of Civil Procedure as back as in the month of April, 2010 stating therein that the appeal filed by the plaintiff - petitioners is rejected by the Supreme Court. Therefore, from perusal of the application for setting aside No W.S. order, there are no any particulars given by the applicants that from April, 2010 till the application was filed in the month of March, 2011, what efforts they have taken to obtain such documents or what prevented them from obtaining such documents in relation to the appeal. That apart, there are no better particulars in the application for setting aside 'No W.S.' order, which would lead to pass a specific order, taking into consideration exceptional circumstances. From the tenor of the application which was filed for setting aside 'No W.S.' order, in fact, there are no exceptional reasons and better particulars, which would enable the trial Court to pass an order setting aside 'No W.S.' order and also further order to take written statement on record. From the tenor of the application which was filed for setting aside 'No W.S.' order, in fact, there are no exceptional reasons and better particulars, which would enable the trial Court to pass an order setting aside 'No W.S.' order and also further order to take written statement on record. In the facts and circumstances of this case, when the matter was fixed for final arguments after recording evidence of the plaintiffs and also the defendants, and when both the parties have filed evidence close purshis, the trial Court should have given cogent and specific reasons for setting aside 'No. W.S.' order and allowing the respondents to file W.S. As stated earlier, the reasons which are taken in the application are almost same reasons which were taken in the application for extension of time for filing W.S. However, the said application was rejected by the trial Court as back as in April, 2010. Therefore, though this Court is alive to the law laid down by the Supreme Court, that the provisions of O. 8 R. 1 of the Code are directory in nature and not mandatory, however, in the facts and circumstances of this case, it has to be concluded that the trial Court was not correct and justified in setting aside the 'No W.S.' order and further allowing the respondents to place on record W.S. The order of the trial Court suffers from recording cogent and exceptional reasons for setting aside the No W.S. order and further allowing the respondents to place on record the W.S. Therefore, in my considered view, in the facts and circumstances of this case, and in view of non recording of cogent and sound reasons in the impugned order, the impugned order deserves to be set aside. However, this Court thinks it appropriate to restore the application - Exh.64 to its original file so as to give one more opportunity to the respondents to put forth their case before the trial Court. 13. Therefore, the impugned order dated 10th March, 2011, passed by the Joint C.J.S.D. allowing the application below Exh.64 subject to payment of costs of Rs.500/-, is quashed and set aside. The application - Exh. 64 is restored to its original file. The C.J.S.D., Nilanga is directed to hear the said application afresh and decide the same on its own merits. Therefore, the impugned order dated 10th March, 2011, passed by the Joint C.J.S.D. allowing the application below Exh.64 subject to payment of costs of Rs.500/-, is quashed and set aside. The application - Exh. 64 is restored to its original file. The C.J.S.D., Nilanga is directed to hear the said application afresh and decide the same on its own merits. If the trial Court finds that there are sufficient, cogent and exceptional reasons to allow such application for setting aside 'No W.S.' order and to take W.S. on record, the trial Court can do so. However, the reasons should be recorded in detail by the trial Court. It is needless to clarify that since the suit has reached up to final hearing, the trial Court is expected to dispose of the said application (Exh.64) on or before 15th February, 2012. The parties are directed to appear before the trial Court on 23rd January, 2012. The trial Court should not grant any unnecessary adjournment to the parties. This order is passed in the facts and circumstances of this case since the respondents should not lose an opportunity to file written statement. The trial Court should decide the said application without being influenced by any observations made by this Court in this order. Writ Petition is allowed accordingly. Rule made absolute in the above terms.