:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 1447 OF PETITION NO. 1447 OF PETITION NO. 1447 OF 2009 2009 2009 Shri S.B. Gupta & Others. ... Petitioners. V/s. Shri Dasharath Shripati Gilbile & Others. ... Respondents. Shri V.A. Shastry for the Petitioners. Shri A.B. Tajane for Respondents 3 to 6. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 8TH 8TH 8TH MAY 2009. MAY 2009. MAY 2009. P.C. P.C. P.C. : : : . This is a Writ Petition by the Original Plaintiff. 2. He is aggrieved and dissatisfied with the order dated 8th December 2008 which has been passed below Exhibit 112. 3. Special Civil Suit No.778 of 1994 is filed by the Petitioner and it is his grievance that no written statement was filed in the said Suit. Therefore, the Court directed that the Suit will proceed ex-parte and an order was made to that effect on 25th November 2002. An application to recall this order was preferred by Defendant Nos. 3 to 6 on 23rd October 2008. That application was delayed by nearly six years but no prayer was made seeking condonation of the delay in filing the :2: same. That apart, no cause was shown for not filing the written statement in a Suit instituted in the year 1994. For all these reasons and when the Trial Court has permitted the written statement to be filed after 14 years of the institution of the Suit, its order suffers from a patent error and the discretion has been exercised arbitrarily and not judiciously. Therefore, the order must be set aside. 4. On the other hand, Mr. Tajane, learned Counsel appearing for the contesting Defendants - Respondents supports the impugned order. 5. I have perused the order and the application on which the same has been passed. It has been stated in the application that the Defendants appeared and had in fact contested the interlocutory application. Thereafter, Original Defendant No.1 was made incharge of the proceedings on behalf of himself and Defendant Nos.3 to 6. He was looking after the Court matter till his death on 23rd August 2004. Further, Advocate Shitole was the Advocate for these Defendants. The Advocate did not inform the Defendants about various stages of the Suit. Thereafter, the other Defendants came on the scene and after they took search of the proceedings, they found that an order of No Written Statement was made on 25th November 2002. The moment this order came to the notice, they had applied for setting aside the same. :3: 6. The Petitioner - Plaintiff opposed this application and pointed out that No Written Statement order is passed after giving full opportunity to the Defendants to file the Suit. The Written Statement cannot now been taken on record and more so, there is a delay of nearly six years in applying for recalling the order of no Written Statement. 7. The Trial Court has adverted to both contentions and has come to a conclusion that the amended C.P.C. does not apply. Further, the Plaintiff himself was guilty of inaction and did not proceed with the hearing of the Suit for a considerable period. That apart, the concerned Defendants have pointed out that the person who has looking after the Court matters expired and thereafter, they have now appeared and would proceed with the Suit diligently. They prayed that this is not a case of deliberate inaction or wilful negligence so also lack of bonafides. Even the Advocate’s inaction is highlighted in the Application of Defendant Nos. 3 to 6. Thus, the delay is satisfactorily explained. The Court below has applied its mind to all aspects and merely because there is no prayer for condonation of delay, does not mean that the Trial Court was unaware of or ignored the principles applicable in that behalf. Admittedly, the amended provisions of C.P.C. (Order 8 Rule 1) are not applicable. Wherever it is applicable, it is still not mandatory (See :4: AIR 2007 SC 2571) M/s. R.N. Jadi and Ors. V/s. Subhashchandra. Hence, correct principles are applied while affording an opportunity to defend the Suit. 8. Although, the Trial Courts reasoning does not appear to be satisfactory but ultimately, substantial justice has been done inasmuch as the Trial Court has permitted the Defendants to defend the Suit. At the same time, the Trial Court should have awarded heavy costs in favour of the Petitioner - Plaintiff but has refused to make any order in that behalf. While permitting parties to contest proceedings after such enormous delay what is expected from the Trial Court is that it should have made an order of costs for compensating the Petitioner - Plaintiff. Further, it should have directed parties to co-operate in the expeditious disposal of the Suit and ought to have given a priority to the Suit. 9. In these circumstances, interest of justice would be subserved if the order of the Trial Court is maintained with this modification that Defendant Nos. 3 to 6 shall pay to the Petitioner - Plaintiff in the Trial Court, costs quantified at Rs.10,000/- within a period of four weeks from today. If such costs are deposited/paid, their written statement shall be taken as being duly filed and they would be allowed to proceed on that basis. If there is a default in payment of costs, the Written Statement thereupon, shall not be treated as a part of the record :5: and the order under challenge then to stand set aside. Needless to state that if the costs are paid and the compliance report is filed, the Trial Court should give priority and endeavour and dispose off the instant Suit by 24th January 2010. Petition disposed off in these terms. 10. At this stage, the Petitioner prays that he desires to challenge this order in the higher Court. At the request of Mr. Shastry, the ad-interim order granted on this Petition to continue for a period of eight weeks from today. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)