1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5005 OF 2004 1] Madhavrao S/o Nagorao Patil (Kumthekar) Age 70 years, Occ-Agril R/o Kumtha (Bk) Tq.Ahmedpur, Dist.Latur 2] Malatibai W/o Madhavrao Patil (Kumthekar) Age 60 years, Occ & R/o as above ..Petitioners [Orig.Defendants] V E R S U S Seemabai W/o Shivaji Patil (Kumthekar) Age 38 years, Occ-Agril & Household, R/o Kumtha (Bk), Tq.Ahmedpur Dist.Latur. ..Respondent. [Orig.Plaintiff] ... Shri S.V.Warad,Advocate for the petitioner. Shri V.V.Bhavthankar, Advocate for the respondent. .... 2 CORAM : R.M.BORDE, J. DATE : 15 th SEPTEMBER, 2010. ORAL JUDGMENT : 1] Rule. Rule made returnable forthwith. With the consent of parties, Petition is taken for final disposal at admission stage. 2] The order passed by the Civil Judge, Junior Division, Ahmedpur on 17/6/2004 below Exh.22 in Regular Civil Suit No.235/2003 is subject matter of challenge in this Petition at the instance of original defendant. The respondent-original plaintiff instituted a Suit claiming partition and separate possession against the petitioners-original defendants. Original plaintiff is a daughter-in-law of the petitioners- orig.defts. herein and she claims her share in the ancestral property. It appears that the husband of the plaintiff and the 3 only son of the petitioner died in the year 20-01 and on his demise, the plaintiff has shifted to her parents’ place. As she has been denied her share she presented Suit in the year 2003. The Suit was presented on 23/9/2003 and summons were issued to the defendants on 30/9/2003. As the defendants did not present their written statement, the Court passed an order of “No W.S.” order on 12/4/2004. An application was presented by the defendants requesting the Court to set aside the order of “No W.S.” and to permit the defendants to present their written statements on 17/6/2004. The application, however, was rejected by the trial Court on the ground that the written statement is not presented within the statutory period prescribed and the Court has no jurisdiction to set aside the earlier order. 3] I have perused the application as well as impugned order. It is well settled that the provisions of Order 8 Rule 1 of C.P.C. are directory in nature and the order passed by the 4 Court to proceed exparte can be set aside if the defendants make out a case for causing interference by the Court. In the application, it is stated by the defendants that on demise of their only son, their psychological condition was not well. The defendants are of advance age and were not keeping good health and they were taking treatment of the doctor at Pune and Bombay. In these circumstances, some delay has occurred, which is not unreasonable and needs to be condoned. The explanation tendered in the application for causing delay in presenting Written Statement, appears to be reasonable and acceptable. The Court ought to have extended an opportunity to the defendants to present Written Statements. It is also informed that during continuance of the proceedings, the petitioner no.1 has passed away on 1/2/2008 and the Suit is now required to be contested by petitioner no.2 only. Considering the nature of the proceedings, it is desirable to extend further opportunity to the petitioner to contest the claim. 5 4] Writ Petition is allowed. The order passed by Civil Judge, Junior Division, Ahmedpur on 17/6/2004 below Exh. 22 in Regular Civil Suit No.235/2003 is hereby quashed and set aside and the trial Court is directed to accept the Written Statements which was sought to be tendered by the petitioner alongwith application. The trial Court shall proceed to decide the Suit in accordance with provisions of law as expeditiously as possible, preferably within 8 months from today. Rule made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. (R.M.BORDE) JUDGE ... umg/wp5005-04