1 IN THE HIGH COURT OF JUDICATURE AT BOMBA APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7051 OF 2008 Sitaram Mahadeo Gavhane and another ...Petitioners Versus Raju Sada Gavhane and others ...Respondents WITH WRIT PETITION NO 7059 OF 2008 Datta s/o Sitaram Gavhane and others ...Petitioners Versus Raju Sada Gavhane and others ...Respondents ..... Mr. A.S. More, advocate for the petitioners None for the respondents though served ..... CORAM: S. S. SHINDE, J. DATED: 14TH SEPTEMBER, 2009 PER COURT:- 1 These writ petitions are filed challenging the order passed by the learned C.J.J.D. Bhoom below Exh.54 and Exh. 45 in R.C.S. No. 33 of 2007. 2 Counsel appearing for the petitioners has invited my attention to the impugned order and submitted that the petitioners herein could not file written statement within time because they did not receive certain documents from the office of Tahsildar and as a consequence thereof, 2 there was delay in filing the written statement. Learned counsel invited my attention to the contents of the application and submitted that in the suit for partition and separate possession, impugned order is not sustainable unless the parties are heard and issue is properly adjudicated. He submitted that in partition suit, the court should not proceed exparte. Learned counsel further submitted that the reasons are given in the applications for setting aside the no W.S. order and those reasons are practical and genuine and therefore, in the interest of justice, the court should have set aside the no W.S. order by allowing the petitioners to file written statement. 3 On perusal of the application at Exh.C, it appears that the original respondent Nos. 4 and 7, who are present petitioners herein have stated in their application that they are illiterate and they cannot read and write as well as they were not able to get the necessary documents required to be filed alongwith the written statement, from the office of Tahsildar and from other Government offices. The impugned order records that no exceptional circumstances have been shown in the application, therefore, since written statement is not filed within 90 days, the court cannot entertain the application, therefore, the application came to be rejected. 3 4 On careful perusal of the contents of the applications for setting aside the no W.S. order and prying for taking written statement on record, it appears that the petitioners, who are original respondent Nos. 4 and 7, have shown sufficient cause to condone the delay and allow the applicants to file written statement on record. Ultimately, it is not within the control of the litigant to seek requisite documents and information from the Government Offices within time, as rightly stated by the applicants in the applications that the time was consumed in obtaining information/documents from the office of the Tahsildar and from other offices. In my considered view, the trail court has taken a very hyper technical view in the suit which is filed for partition and separate possession. Therefore, in the facts and circumstances of this case, the impugned orders in both the petitions are set aside. The trial court is directed to accept the written statement on behalf of the original respondent Nos. 4 and 7, within two weeks from the date of receipt of order from this Court, subject to deposit of costs amount of Rs.2000/- in the trial court by the petitioners. On depositing the costs amount of Rs.2000/-, the plaintiff would be entitled to withdraw the said amount. Writ petitions are allowed and disposed of. Interim relief, stand vacated. *****