1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7382 OF 2008 Maruti Laxman Sandbhor. ..Petitioner. V/s. Bhagavantrao T. Borhade. ..Respondent. Mr.G.N.Salunkhe for petitioner. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 2, 2009. DATE : APRIL 2, 2009. DATE : APRIL 2, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the Petitioner. None appears for the Respondent though served. 2. Rule. Rule made returnable forthwith. As short question is involved, Petition is taken up for final disposal forthwith. 3. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order dated 18th August, 2008 passed by the Civil Judge, Junior Division, Khed, Pune below Exh. 12 in R.C.Suit No.298 of 2007. By this Order the Court below has rejected the Petitioner’s application for condoning delay in filing the Written Statement and 2 allowing the Petitioner to file Written Statement on record. The Court below has observed that no exceptional circumstance has been made out by the Petitioner. Indeed, if no exceptional circumstance has been made out, the Court could not have assumed jurisdiction to allow the Petitioner to file Written Statement beyond the statutory period. In the present case, however, the Petitioner moved the Court by way of Application Exh.12 with clear assertion that on account of his severity of illness he was not in a position to give instruction to his advocate to file written statement within time. To substantiate his case that he was severely unwell, the Petitioner relied o the medical certificate of Dr. Anil P. Khinvasara dated 27th June, 2008. The said certificate states that the Petitioner was under treatment from 2nd April, 2008 to 26th June, 2008 as he was suffering from infective hepatitis and was advised full bed rest. The genuineness of the said certificate was not challenged by the Respondent all. All that the Respondent in the reply stated was that the summons was served on the Petitioner on 27th February, 2008 and the Petitioner entered vakalatnama and made appearance on 27th March, 2008 and thereafter kept on taking adjournment for filing Written Statement, for which no indulgence be shown 3 to the Petitioner. The fact remains that the case made out by the Petitioner about severity of illness and was advised complete bed rest has not been challenged at all. If it is so, it necessarily follows that the Petitioner was suffering from serious illness, which prevented him to prosecute the matter with dispatch. That situation was completely beyond the control of the Petitioner. In my opinion, that is the exceptional circumstance, which would entitle the Petitioner for indulgence in the interest of justice. 4. Accordingly, this Petition ought to succeed. The impugned Judgment and Order is set aside and instead, the Application Exh. 12 is made absolute on condition that the Petitioner shall pay cost to the Respondent quantified at Rs.5,000/- as condition precedent for showing indulgence in terms of this Order. The amount towards cost be deposited in the Trial Court within four weeks from today. On complying with the condition, the Trial Court may take the Written Statement to be presented by the Petitioner on record and proceed with the suit in accordance with law. 5. Petition disposed of on the above terms. 4 6. While parting, it is placed on record that ordinarily, the Court would issue fresh notice to the Respondent and moreso, to indicate that the matter will be finally disposed of at the notice stage. However, for the nature of stand taken by the Respondent in the reply filed before the lower Court, I am inclined to dispose of the Petition finally without issuing fresh notice to the Respondent on the assumption that the Respondent may not have serious objection for the relief granted to the Petitioner in terms of this order, which is subject to payment of cost. If the Respondent has any grievance in this behalf, will be free to apply to this Court for recall of the order, which application will be considered on its own merit, provided they have not withdrawn the amount deposited by the Petitioner before the Trial Court. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)