ORDER : B. Veerappa, J. 1. This is a defendant's writ petition against the order dated 15-7-2016 in O.S. No. 290 of 2013 on I.A. No. 4 on the file of Civil Judge and Judicial Magistrate First Class at Periyapatna, rejecting the application filed by the defendant seeking permission to file written statement. 2. The respondent-plaintiff filed a suit for specific performance of contract to enforce the agreement dated 27-6-2009 contending that the defendant had executed an agreement of sale in respect of the suit schedule property for a total sale consideration of Rs. 2,70,000/- and has received advance of Rs. 2,05,000/- and the balance amount of Rs. 65,000/- was to be paid at the time of registration of the sale deed. In spite of repeated requests, he has not bothered to execute the sale deed and hence the plaintiff has filed the said suit. 3. The suit was filed on 21-10-2013 and the defendant appeared before the Trial Court on 18-11-2013 and filed an application seeking permission to file written statement. The said application was allowed and time was granted till 5-12-2013 to file the written statement, but the defendant failed to file the same within the time stipulated. Thereafter, the case was posted for plaintiff's evidence and the defendant did not chose to cross-examine the plaintiff and hence plaintiff's cross-examination was taken as 'nil'. When the case was posted for arguments, the defendant has filed LA. No. 4 seeking under Section 151 of Civil Procedure Code, 1908 seeking permission to file the written statement contending that he was suffering from BP and diabetes over a period of two years and hence was unable to contact his Advocate to give instructions to file written statement. The delay was not intentional, but for the reasons stated above. Hence he sought for allowing the application. The said application was resisted by filing objections by the plaintiff. The Trial Court, by the impugned order dated 15-7-2016, rejected the said application on the ground that though the defendant was granted time till 5-12-2013, defendant has not filed the written statement and has not produced any medical certificates to support his contention that he was suffering from ill-health during the relevant period. Hence the present writ petition by the defendant praying to set aside the impugned order and permit him to file written statement. 4. I have heard the learned Counsel for the parties. Hence the present writ petition by the defendant praying to set aside the impugned order and permit him to file written statement. 4. I have heard the learned Counsel for the parties. 5. Learned Counsel for the petitioner-Sri Chandrashekar vehemently contended that the impugned order passed by the Trial Court is contrary to the facts of the case. Without appreciating the reasons assigned in the affidavit accompanying the application, the Trial Court proceeded to dismiss the application and has failed to notice that the delay was not intentional, but for the reason that the petitioner was aged about 76 years and was suffering from several diseases. Medical documents pertaining to the petitioner are produced along with this petition at Annexure-F series to showed that he was suffering from various ailments during the relevant period. Therefore he sought to set aside the impugned order. 6. Per contra, Sri H.K. Srivathsava, learned Counsel for the respondent-plaintiff sought to justify the impugned order passed by the Trial Court and contended that the defendant was not diligent to file the written statement within the time as contemplated. He further contended that the defendant had not produced any medical documents in support of his contention and hence the Trial Court was justified in rejecting the application and hence he sought to dismiss the writ petition. 7. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arise for consideration in the present writ petition is: Whether the impugned order passed by the Trial Court rejecting the application seeking permission to file the written statement, is justified? 8. I have given my careful consideration to the arguments submitted by the learned Counsel for the parties. It is an undisputed fact that the respondent-plaintiff filed the suit for specific performance of contract for enforcement of alleged agreement of sale dated 27-6-2009. In the said suit, the defendant failed to file his written statement within the stipulated time and after the plaintiff's evidence when the matter was posted for arguments, the defendant filed LA. No. 4 seeking permission to file the written statement, contending that he was not well at the relevant period to contact his Advocate and file the written statement. But the said application was rejected by the Trial Court and hence he has filed the present writ petition. 9. No. 4 seeking permission to file the written statement, contending that he was not well at the relevant period to contact his Advocate and file the written statement. But the said application was rejected by the Trial Court and hence he has filed the present writ petition. 9. The Trial Court, while considering the application for condonation of delay, has dismissed the same mainly on the ground that though the defendant was permitted to file his written statement on or before 5-12-2013, the defendant has not filed the same and the defendant has not produced any documents in support of his contention that he was not well during the relevant period. Learned Counsel for the petitioner has produced medical documents as per Annexure-F series in support of his contention that the petitioner-defendant was suffering from various ailments due to his age factor, during the relevant period. 10. The parties should not be deprived of the rights on technicality. It is well-settled law that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 11. Admittedly, in the present case, there was no deliberate delay on the part of the defendant in filing written statement within the time stipulated. For the reasons stated above and taking into consideration the relief sought in the plaint, it is appropriate to provide an opportunity to the defendant to file written statement, on payment of costs in view of the dictum of the Hon'ble Supreme Court in the case of Mohammed Yusuf v. Faij Mohammad and Others (2009)3 SCC 513 , wherein at paragraphs 9 to 12, it has been held as under: "9. It is urged that the provisions of Order 8, Rule 10 of the Code of Civil Procedure having been held to be directory in nature by this Court in Kailash v. Nanhku and Others, (2005)4 SCC 480 , this Court may not exercise its discretionary jurisdiction under Article 136 of the Constitution of India. Order 8, Rule 1 of the Code of Civil Procedure, 1908 reads thus: "1. Written statement.-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons." Although in view of the terminologies used therein the period of 90 days prescribed for filing written statement appears to be a mandatory provision, this Court in Kailash (supra) upon taking into consideration the fact that in a given case the defendants may face extreme hardship in not being able to defend the suit only because he had not filed written statement within a period of 90 days, opined that the said provision was directory in nature. However, while so holding this Court in no uncertain terms stated that defendants may be permitted to file written statement after expiry of period of 90 days only on exceptional situation. 10. The question came up for consideration before this Court in M. Srinivasa Prasad and Others v. The Comptroller and Auditor General of India and Others, 2007(5) SCALE 171 , wherein a Division Bench of this Court upon noticing Kailash (supra) held as under: "7. Since neither the Trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of time fixed, we set aside the orders of the Trial Court and that of the High Court. The matter is remitted to the Trial Court to consider the matter afresh in the light of what has been stated in Kailash's case (supra). The appeal is allowed to the aforesaid extent with no order as to costs." 11. The matter is remitted to the Trial Court to consider the matter afresh in the light of what has been stated in Kailash's case (supra). The appeal is allowed to the aforesaid extent with no order as to costs." 11. The matter was yet again considered by a three Judges Bench of this Court in R.N. Jadi and Brothers and Others v. Subhashchandra, (2007)6 SCC 420 . P.K. Balasubramanyan, J., who was also a member in Kailash (supra) in his concurring judgment stated the law thus: "14. It is true that procedure is the handmaid of justice. The Court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that was a party to the decision in Kailash v. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that contest that in Kailash v. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the Court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the Code and the power inhering in the Court in terms of Section 148 of the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order 8, Rule 1 directory, leaving it to the Courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order 8, Rule 1 directory, leaving it to the Courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the Court being conscious of the fact that even the power of the Court for extension inhering in Section 148 of the Code, has also been restricted by the Legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8, Rule 1 must be adhered to and that only in rare and exceptional case, will the breach thereof will be condoned. Such an approach by Courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in Courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine and Sons that law's delay have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?" 12. In view of the authoritative pronouncements of this Court, we are of the opinion that the High Court should not have allowed the writ petition filed by the respondent, particularly, when both the learned Trial Judge as also the Revisional Court had assigned sufficient and cogent reasons in support of their orders." 13. Admittedly, in the present case, the specific case of the defendant in I.A. No. 4 seeking permission to file written statement is that due to his old age of 76 years and that he is suffering from several diseases in support of which medical documents pertaining to him has been produced in the writ petition as per Annexure-C series to showed that he was suffering from various ailments during the relevant period. Therefore, this is a rarest of rare case to permit the petitioner-defendant to file his written statement subject to payment of costs since the matter is of the year 2013 no injustice would be caused to the plaintiff and that the delay has been intolerable. 14. For the reasons stated above, the point raised in the present writ petition is answered in the negative holding that the Trial Court was not justified in rejecting the application LA. No. 4 filed by the defendant seeking permission to file his written statement. Accordingly, the impugned order is set aside and the defendant is permitted to file his written statement before the Trial Court, subject to payment of cost of Rs. 10,000/- to the plaintiff on the next date of hearing. 15. Writ petition is accordingly allowed. The Trial Court is directed to dispose of the suit as expeditiously as possible.