KBP WP5734-09.sxw : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5734 OF 2009 Ashok Huckumchand Bhatija ..Petitioner V/s. M/s.Metro House Private Limited and ors. ..Respondents ..... Mr.A.C.Singh, Mr.A.R.Singh i/b.Mr.D.R.Shah, for petitioner. Mr.N.B.Shah with Mr.Piyush Shah, for respondents. ..... CORAM : A.S.OKA, J. DATE : 22 nd JULY, 2009. P.C. : 1] Heard learned Counsel for the parties. 2] Rule. Learned Counsel for first respondent waives service. Considering the nature of controversy, the petition is forthwith taken up for final disposal. 3] The Petitioner is 9 th defendant in the suit for eviction filed by the first respondent-plaintiff. The suit for eviction is on various grounds under the Maharashtra Rent Control Act, 1999. Suit was filed in the year 2004. Written statement was not filed by the petitioner within time stipulated by law. KBP WP5734-09.sxw : 2 : Hence, an application was made by the petitioner for condonation of delay of about three years and seven months in filing written statement. By the impugned order, the said application came to be rejected by the learned trial Judge. 4] In support of petition, reliance has been placed by the learned Counsel for the petitioner on an affidavit filed by a practicing Advocate in which it is stated that though written statement was kept ready, due to inadvertence, he did not file it and he noticed the said fact only in August-2008. It is submitted that the petitioner cannot be blamed for non filing of written statement. 5] Learned Counsel for first respondents pointed out that the case made out regarding reference of the suit to Lok Adalat is not correct. He pointed out that the petitioner was not diligent and the petitioner should have filed the written statement earlier. He submitted that the grant of such prayer at this stage will be totally contrary to the provisions of the Code of Civil Procedure as amended in the year 2002. He submitted that there are no extra ordinary reasons or circumstances brought on record by the petitioner, and therefore, no interference is called for. 6] I have carefully considered the submissions. It is true that the delay of three years and seven months is a very long delay. However, my attention has been invited to an affidavit of the advocate who has been practicing for last 35 years. It is stated therein that after service of summons, the petitioner had approached him in January, 2005. It is stated in the affidavit that he had prepared the written statement of the petitioner and he was under impression that the same has been filed by his Clerk. It is stated that inadvertently the KBP WP5734-09.sxw : 3 : written statement was not filed. There was no interlocutory application pending in the suit and, therefore, there was no necessity of immediately attending to the matter. The concerned advocate was depending on his clerk who was knowing the dates of the suits. It is further stated that the file of petitioner in his office got mixed up with the papers of some disposed off cases. Subsequently, when a search was taken in the office, the Advocate found the said file tied to papers of some disposed off cases. After going through the file, it was realised that the vakilpatra and written statement were signed in January-2005 but, inadvertently, the same were not filed. It is stated that in August 2008 the brief was handed over to the petitioner to engage another lawyer. The application has been filed by the petitioner on 28 th August, 2008. The advocate who is stated to be practicing for last thirty five years has filed the said affidavit stating therein that the written statement was signed by the petitioner in January-2005. 7] It is not possible to dispute the correctness of the statements made by the learned Advocate. Considering these peculiar circumstances, it is obvious that the petitioner cannot be blamed for non filing of written statement as the written statement was kept ready and was signed by him in January-2005. Therefore, this was a fit case for permitting the petitioner to file written statement. In the whole process the first respondent has suffered prejudice. The same can be compensated by imposing a heavy costs. The amount of costs is quantified at Rs.15,000/-. Hence, I pass the following order: (i) The impugned judgment and order dated 21 st March, 2009 is quashed and set aside. (ii) The application at exhibit 18 is allowed subject to petitioner paying costs of Rs.15,000/- to first respondent within four weeks from today. KBP WP5734-09.sxw : 4 : (iii) The written statement shall be filed by the petitioner within a period of six weeks from today and no further extension shall be granted by the trial court. (iv)Hearing of the suit is expedited. ( A.S.OKA, J. )