1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 566 OF 2010 Nirupam Nanigopal Roy -: versus :- Sheetal Baburao Choudhary Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 13, 2010. Heard Shri T. Mandlekar, learned counsel for petitioner and Shri B.N. Mohta, learned counsel for respondent. Trial Court has by order dated 04.12.2009 rejected application below Exh.16 filed by petitioner / defendant for setting aside no written statement order and for taking written statement on record. Learned counsel for petitioner states that earlier counsel for petitioner / defendant did not cooperate with him and hence the situation in which no written statement order came to be passed resulted. He points out that on merits, petitioner / defendant has good case, because the Consumer Forum after full trial directed defendant to pay Rs. 1,95,000/- to respondent builder and that amount is accordingly deposited in the court. In spite of deposit of that amount, respondent / plaintiff has not carried out any construction and filed a suit for recovery of amount of Rs. 1,17,525/-. 2 Shri Mohta, learned counsel on the other hand relies on some judgment to urge that exceptional circumstances are required to be pleaded and pointed out to file written statement on record after expiry of period of 90 days. He relies upon the express language of Order 8 Rule 1 of C.P.C. He further states that petitioner himself is negligent in the matter and by changing counsel blame is being put on earlier Advocate who faithfully defended him before the Consumer Forum and was also taking care of his litigation in Civil Suit. In present facts it is not necessary for this court to look into the case law or then to examine the conduct of the earlier Advocate. The facts show that before Consumer Forum there was a direction to petitioner / defendant and that direction has been complied with. The facts also show that in the face of that direction a Special Civil Suit has been filed by the present respondent for recovery of amount of Rs. 1,17,525/- against him. I do not find any malafides on the part of the petitioner / defendant in not filing written statement in such situation. He is not going to gain anything by not filing that written statement in the matter. It is true that there are some variation in the story as pleaded in the writ petition and as placed before the trial Court in application for setting aside no written statement order vide Exh.16. However, that variation is not fatal to the plea being raised by the petitioner / defendant to show his bonafides. The petitioner has also deposited amount of Rs. 50,000/- with trial Court as per orders of this Court dated 08.02.2010. Interest of justice can therefore be met by directing petitioner to pay amount of Rs. 5000/- to present 3 respondent/plaintiff as costs by 28.04.2010 before trial Court. If the costs are so paid, the trial court shall take the written statement on record by recalling order of no written statement and thereafter shall proceed further in accordance with law. The amount of Rs. 50,000/- in deposit, shall be retained by the trial Court till the adjudication of Civil Suit and its disposal shall be governed by its final decision. Writ Petition is allowed in the aforesaid terms. Rule accordingly. JUDGE Rgd.