1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6777 OF 2009 Narayan Gangaram Dhaigude and another Petitioners versus Dilip Narayan Dhaigude Respondent M.N.Dhamal for petitioners. Dilip Bodake for respondent. CORAM : A.S.OKA, J. DATE : 18th January 2010 PC :- 1. Heard learned counsel for the petitioners. The petitioners are the original first and fourth defendants and respondent is the original plaintiff. The first petitioner (first defendant) made an application at Exhibit-89 praying for setting aside the order dated 27th December 2001 passed by the Trial Court to proceed with the suit without written statement of the first petitioner. The said application was made on 12th January 2009. The second petitioner made a similar application at Exhibit-91. By a common order dated 23rd March 2009, the learned Trial Judge rejected both the applications. 2 2. The learned counsel appearing for the petitioners submitted that the present age of the first petitioner is more than 80 years and respondent-plaintiff is his son. He submitted that it is disclosed in the application at Exhibit-89 that the present age of the petitioner is 85 years and he is not keeping good health. He pointed out that it is stated that due to old age the eye sight and hearing capacity of the first petitioner has been impaired and therefore, the written statement could not be filed. He submitted that an opportunity be granted to the first petitioner to file the written statement. 3. I have carefully considered the submissions. It is not in dispute that an order to proceed with the suit without written statement of the petitioners was passed on 27th December 2001. A xerox copy of the plaint shows that the said order has been passed in the year 2001 and not in the year 2007, as contended in the application at Exhibit-89. It appears that the defendants in the suit have engaged a common advocate. On 18th June 2008, the advocate for the defendants cross examined the respondent- plaintiff. A perusal of the cross examination and in particular paragraphs 9 and 11 shows that the cross examination has been made even on behalf of first petitioner. The present application on which the impugned order has been passed, has been filed nearly six months after the sixth respondent was cross examined by the advocate for the petitioners. 3 In the circumstances, the learned Trial Judge was right in exercising the discretion against the petitioners. There is a gross delay of about eight years in making the application. The learned counsel for the petitioners submitted that the first petitioner be permitted to adopt the written statement of the second defendant. The first petitioner can always seek permission of the Trial Court to adopt the written statement of the second defendant. 4. Subject to what is observed above, no case for interference is made out. The writ petition is accordingly rejected. (A.S.OKA, J.)