*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5590/2009 Praveen Ramchandra Mane and another. ..Petitioners -VERSUS- Dayanand Namdeo Shinde and others. ..Respondents ............... Mr.P.J.Shinde, Advocate for the Petitioners. Mr.P.S.Gole, Advocate for the Respondent No.1. ............... CORAM: A.P. DESHPANDE, J. Dated 09th December, 2009. PC:- 1 Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2 The Respondent No.1 instituted a suit for specific performance of the agreement entered into between the Respondent No.1 and father of the Petitioners. The Respondent No.2 is the original Defendant No.1 whereas the Petitioners are the original Defendants Nos.2 and 3. The agreement of which specific performance is sought is dated 17.07.2006. After service of suit summons, the Defendants Nos.1, 2 and 3 did engage services of an Advocate, however, failed to file the Written Statement within time stipulated and hence, by an order dated 31.03.2008 the Trial Court passed an order “no written statement”. The present Petitioners, as such, moved an application on 27.01.2009 seeking permission to file *2* the Written Statement and rejection of the said application, has given rise to the filing of the present Writ Petition. 3 The learned counsel for the Petitioners submitted that on the date of entering into an agreement, the Petitioners were minors. The petitioners are not signatories to the agreement entered into by the Defendant No.1 (their father) in favour of the Respondent No.1. According to the Plaintiff, the father of Petitioners had entered into an agreement of sale for family necessity. It, thus, appears that the suit property is jointly owned by the Defendants Nos.1, 2 and 3 and the Defendants Nos.2 and 3 are not signatories to the agreement. The said agreement would bind them provided the Defendant No.1 had agreed to sale the same for family necessity. Burden to establish the same would be on the Plaintiff. 4 It is also the case of the Respondent No.1/ Plaintiff that after service of suit summons, the suit property has been sold by the Defendants Nos.1, 2 and 3 (present Petitioners and their father) in favour of the Defendants Nos.4 to 7 and hence, though the Defendants Nos.4 to 7 were not arrayed as Defendants in the suit as originally filed, however, thereafter the plaint has been amended and the Defendants Nos.4 to 7 are impleaded as party Defendants and thus, now the case is fixed for filing of the Written Statement by the Defendants Nos.4 to 7. 5 According to the learned counsel for the Petitioners, on account of non filing of the Written Statement within time stipulated by the present Petitioners, no prejudice has been caused to the Plaintiff inasmuch as thereafter, he has brought on record the Defendants Nos.4 to 7 and the matter rests at the stage where it was *3* while passing the order of no Written Statement. The learned counsel submitted that the Petitioners have already tendered the Written Statement, however, the same was not accepted. In short, the submission is that if the Written Statement tendered by the Petitioners is accepted by the Court below, the same would be in the interest of justice inasmuch as the Court would be pronouncing the judgment on merit. There is no question of any prejudice being caused to the Plaintiff on account of delay in the suit proceedings inasmuch as no written statement has been filed by the Defendants Nos.4 to 7 as yet. It is, thus, clear that if the Written Statement tendered by the Petitioners is accepted, the same is not going to cause any delay in disposal of the suit or any prejudice to the Plaintiff. 6 True it is that no satisfactory explanation was tendered by the Petitioners for their failure to file the Written Statement within stipulated time before the Trial Court. However, having regard to the fact that the Petitioners were minor when the agreement was entered into by their father with the Plaintiff, I deem it appropriate to permit the Written Statement tendered by the Petitioners on record to be accepted, however, the Petitioners need to be saddled with cost. The present Writ Petition deserves to be allowed as the same would be in furtherance of cause of justice and would not cause any delay in disposal of the suit or any prejudice to the Plaintiff. 7 In the result, Writ Petition is allowed. The impugned order is quashed and set aside. It is directed that the Written Statement filed by the Petitioners be accepted as validly tendered. *4* Writ Petition is allowed subject to payment of cost of Rs.10,000/- by the Petitioners to the Respondent No.1. This cost shall be over and in addition to the cost deposited by the Petitioners, in pursuance of the order dated 27.07.2009, in this Court. The said cost of Rs. 10,000/- shall be deposited in the Trial Court within four weeks from today. The Respondent No.1 is permitted to withdraw the cost of Rs.5,000/- deposited in this Court by the Petitioners under order dated 27.07.2009. The Respondent No.1 is also permitted to withdraw the cost to be deposited by the Petitioners in the Trial Court. 8 Rule made absolute in the above terms. (A.P. Deshpande, J)