1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1708 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. S.N. Chandrachood for the petitioners. Mr. U.B. Nighot for the respondent. CORAM : D.G. KARNIK, J. DATE : 8TH JULY 2010 P.C. : 1. Rule, returnable forthwith. 2. Mr. Nighot waives service for the respondent. 3. By this petition, the petitioners who are the original defendants pray for setting aside of the order dated 9 October 2010 rejecting their application for setting aside the “No W.S.” order. 2 4. The petitioners are the defendants in the suit filed by the respondent in the year 2000 before the amendment of the Code of Civil Procedure by the Amendment Act of 2002. They did not file the written statement within the time permitted by the Court and hence “No W.S.” order was passed against them. They applied for setting aside of the “No W.S.” order. By an order dated 9 October 2009, that application was rejected. Hence, the petitioners are before this Court. 5. The petitioners and the respondent are near relatives. The suit is for partition. In the application, the petitioners have stated that they were not in a position to obtain certified copies of the sale deed under which their grand father had purchased the suit property and hence they could not file the written statement on time. In a suit for partition, whether the property is a joint family property or a self- acquired property is a material fact and, 3 therefore, information relating to purchase of the property was necessary. Taking this into consideration, in my view, the delay in filing of the written statement could be condoned. It may, however, be noted that there has been a substantial delay in filing of the written statement and applying for setting aside of the “No W.S.” order. The respondent, therefore, must be compensated by sufficient costs. Taking into consideration the long delay, it would be appropriate to award cots of Rs. 25,000/- to the respondent in addition to the costs of defending this petition which are quantified at Rs.5,000/-. Hence, I pass the following order: (i) The impugned order is set aside. The written statement if tendered by the petitioners within 6 weeks hereof shall be taken on record subject to the petitioners paying to the respondent directly or depositing in the trial court a sum of Rs.25,000/- before tendering of 4 the written statement. In the event the costs are not paid/deposited in the trial court within 6 weeks, Rule shall stand discharged and the impugned order stand confirmed. (ii) The petitioners shall also pay to the respondent the costs of this petition quantified at Rs.5,000/-. The said costs have been deposited in this Court. The respondent is at liberty to withdraw the same. (iii) Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)