( 1 ) RULE. Rule is made returnable forthwith by consent of parties.

( 2 ) PETITIONER had challenged the order passed below Exhibit 14 in Special civil Suit No. 20 of 2003. The order impugned has been delivered relying on reported judgment of this Court in Indium India Telecom Ltd. vs. Motorola Inc. , 2004 (1) Mh. L. J. 532.

( 3 ) HEARD parties at length. Perused certified record of case and the copy of roznama which is tendered at the time of hearing of which xerox copy is retained on record.

( 4 ) IT reveals that summons for settlement of issues was served on the defendant present petitioner and defendant appeared; on 21st August, 2003.

( 5 ) UPON appearance, the defendant Nos. 1 and 2 filed an application for grant of time to file written statement which was granted and the case was posted on 8th October, 2003. Time so granted was again extended up to 12th November, 2003, when the defendants filed application (Exh. 12) praying for dismissal of suit in view of the provisions contained in section 57 of the Agricultural Produce market Committee Regulation, 1963.

( 6 ) THE case was adjourned for filing say to application raising preliminary objection. However, the matter was not heard thereafter on two dates. On 11th february, 2004 Exhibit 12 was rejected and thereafter the suit was ordered to proceed as per law.

( 7 ) THE case was then fixed on 3rd March, 2004. It is seen that the Written statement was filed by the defendants on the adjourned date i. e. , on 3-3-2004, the plaintiff filed objection to the acceptance of Written Statement relying upon the aforesaid Judgment of Iridium India Telecom Ltd. vs. Motorola (supra ). This objection was replied by the defendants present petitioners by filing say on 17-3-2004.

( 8 ) UPON hearing the Advocates of both sides, the learned trial Court has passed the impugned order holding that the Written Statement was filed after 90 days holding that the Court had not extended the time, nor it could have been extended.

( 9 ) IN the present petition, the said order is challenged. The learned advocate for the petitioners relied upon following Judgments : (1) 2005 (6) SCALE 26, Salem Advocate Bar Association Tamil Nadu vs. Union of India. (2) 2005 (2) Mh. LJ. (S. C.) 775 = 2005 AIR SCW 2346, kailash vs. Nanhku and others (3) 2004 (4) Mh. L. J. 739, Chintaman sukhdeo vs. Shivaji Bhausaheb.

( 10 ) IN view of these judgments and facts of the case, the learned Advocate shri Saboo advanced the following submissions : (a) the judgment in Indium India Tele Ltd. vs. Motorola, is a judgment on Bombay Original Side Rules and does not govern the situation, as in the present case; (b) the Judgment in Indium India Tele Ltd. vs. Motorola is already distinguished by this Court in 2004 (4) Mh. LJ. Page 739, chintaman Sukhdeos case and it is held that the provision contained in Order 8, Rule 1 is directory and not mandatory; (c) Their Lordships of the Supreme Court held in the case of Kailash vs. Nanhku and others and in case of Salem Advocate Bar association Tamil Nadu vs. Union of India that bar created under order 8, Rule 1 of Civil Procedure Code, is directory and in exceptional cases, time could be extended.

( 11 ) ON facts, the petitioners, have made out a case, which is exceptional namely the days lost between the date of appearance and failure to file Written statement were spent in hearing on Exh. 12. The learned Advocate for the petitioners while he submitted Exh. 12 and proceeded for hearing thereof could have very well filed an application for grant of extension to file Written statement until decision of Exh. 12. However, no such application was filed, apparently on mistaken belief that the objection pertains to the jurisdiction of the court and filing of Written Statement may not be necessary until said point is decided.

( 12 ) THOUGH the notion, due to which written statement was not filed, is not legally correct, however, a litigant always acts under legal advice and cannot be blamed for