1 (904) WP 104/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 104 OF 2011 Amrita Bhoolabhai .. Petitioner Vs. Dr. Sunil Bhoolabhai & Anr. .. Respondents Mr. Anand Grover a/w Ms. Firdous Moosa i/b Mr. Prakash Mahadik for the Petitioner. Mrs. Mrunalini Deshmukh for Respondent No.1. Mr. Narayan B. Suvarna for Respondent No.2. CORAM : MRS. ROSHAN DALVI, J. Date : 21st January, 2011 P.C. 1. Rule made returnable forthwith. 2. The Petitioner wife filed an application for divorce against the Respondent on 04.03.2010 in Family Court, Mumbai. The first date of hearing was 23.04.2010 when the summons was served. Thereafter on 06.05.2010, 21.06.2010 and 12.08.2010 the Petition came up for hearing. Until then the Respondent did not file his Written Statement. Provisions of Order VIII Rule 1 of the Code of Civil Procedure were not complied. The Respondent’s Advocate filed only her Vakalatnama. The learned Judge accepted the Vakalatnama and since the Respondent was absent, as he was a busy dentist, gave him a chance to appear before the Court on the next date of hearing. On that date the Petitioner’s application for ex parte decree was already made but was rejected. The next date of hearing was 03.09.2010. The Respondent did 2 (904) WP 104/11 not file his written statement even on that date and hence the provisions of Order VIII Rule 1 of the Code of Civil Procedure were again not complied. On that date the Respondent failed to appear and applied for exemption on the ground that he had to go to U.S. to renew his Green Card status. The learned Judge granted his application for exemption on the ground that he has given satisfactory reason not to appear. The satisfactory reason for non appearance was seen despite not filing of the Written Statement. 3. The Written Statement is required to be filed in Court within time prescribed in the Code of Civil Procedure. If the Written Statement is filed, the parties’ non appearance may always be condoned. Nevertheless the learned Judge again gave him next date to appear and kept the application for passing ex parte decree in abeyance. 4. On the next date of hearing, which was 13.10.2010, the Written Statement was still not filed. The provisions of Order VIII Rule 1 of the Code of Civil Procedure were not yet complied. The Petitioner pressed her application for ex parte decree. The learned Judge has rejected that application which is impugned in this Petition. The learned Judge has concluded that there is no reason to proceed ex parte against the Respondent because as far as possible opportunity of hearing should be given to both sides. The learned Judge has observed that the Respondent as well as Co-Respondent had appeared before the Court and had “shown willingness” to submit their defence. Hence she concluded that the Petitioner’s prayer for proceeding ex parte cannot be granted and 3 (904) WP 104/11 rejected the application. 5. Such an order, aside from being contrary to law, is contrary to equity and justice. A party is required to file his Written Statement. He is not required to show his willingness to file his Written Statement. Even if he only shows his willingness, that could be considered but once. He cannot, on various dates, on various grounds, only show willingness and not comply what he willing to do. The presence of the party does not matter if the Written Statement is not filed because the Court cannot proceed with the hearing of the Petition unless the defence is on record in writing. The opportunity which is given in law is of a specific time which has to be obeyed by all including the Judge. It is one thing to allow a party some leave and another to come to the conclusion upon a wrong premise. The application of a right party has to be granted and cannot be rejected. The impugned order, therefore, deserves to be interfered with and set aside. 6. However Counsel on behalf of Respondent now undertakes to file the Written Statement of the Respondent and states that the Respondent does not desire to procrastinate the matter. She submits that such an application was not made before the learned Judge because counseling sessions were on. However the fact of the counseling sessions or the fact that the Respondent could not file his written statement because the counseling session may prove successful for reconciliation is not at all reflected in the impugned order. 7. Upon the undertaking of the Counsel on behalf 4 (904) WP 104/11 of the Respondent that Respondent No.1 shall file his Written Statement, the very last opportunity is given to the Respondent. Hence the following order: :: O R D E R :: 1. The Respondent shall file his Written Statement within 30 days from today, failing which the learned Judge shall proceed to pass an ex parte decree. 2. The Petitioner’s Advocate has already offered inspection of the documents relied upon by the Petitioner in the Petition which may be taken by the Respondent and/or his Counsel well within time. 3. It is clarified that the application for production of certain documents made by way of a letter of the Respondent’s Advocate to the Petitioner’s Advocate and by way of application to Court with regard to the Respondent’s income or properties is quite extraneous to the Written Statement and shall be dealt with only with regard to the application for maintenance. 4. Rule is made absolute accordingly. ( ROSHAN DALVI, J.)