1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2733 OF 2007 ==== 1- Pandit s/o Natha Phalke, age 65 years, Occ. Agri, R/o Raheri, Tq. Georai, Dist. Beed. 2- Ramkishan s/o Pandit Phalke, age 35 yrs, Occ. Agril, r/o Raheri, Tq. Georai, Dist. Beed. Petitioners V E R S U S 1- Radhakishan s/o Natha Phalke, age 43 yrs, Occ. Agri, r/o Raheri, Tq. Georai, Dist. Beed. 2- Babasaheb s/o Natha Phalke, age 68 yrs, Occ. Agri, R/o Raheri, Tq. Georai, Dist. Beed. 3- Bappasaheb s/o Pandit Phalke, age 23 yrs, Occ. Agri, R/o Raheri, Tq. Georai, Dist. Beed. 2 4- Anusayabai w/o Pandit Phalke, age 58 yrs, Occ. Agri, R/o Raheri, Tq. Georai, Dist. Beed. 5- Anusayabai Babasaheb Survase, age 48 years, Occ. Agri and household. r/o Khandvi, Tq. Georai, Dist. Beed. 6- Madhubai w/o Arjunrao Gholap, age 45 yrs, Occ. Agri and Household, R/o Talwat Borgaon, Tq. Georai, Dist. Beed. Respondents ==== Shri Vivek Dhage, Advocate for the petitioners. R-2 to 6 served. R-1 served through paper publication. CORAM : R. M. BORDE, J. DATE : 6 TH NOVEMBER, 2009. ORAL JUDGMENT :- 1. Heard Shri Dhage, counsel appearing for the petitioners. None appears for the respondent though served. Respondent No.1-original plaintiff did not cause appearance though he was served through alternate mode of service i.e through newspaper publication. Rule. Petition is taken up for final disposal at admission stage. 3 2. The order under challenge is passed by the trial Court on 04.04.2007 refusing request made by the original defendants No. 1 and 3 in respect of acceptance of written statement and for setting aside ‘No W.S.’ order passed by him. The suit is presented by respondent no.1-original plaintiff, who is the real brother of petitioner no.1 and uncle of petitioner no.2 claiming partition and separate possession of the ancestral property. On presentation of the suit, suit summons came to be served on defendants however, because of certain unavoidable circumstances, defendants could not present written statement. Trial Court therefore, passed an order to proceed in the absence of written statement by defendants no.1,3 and 5. ‘ No WS ‘ order was passed by the trial judge on 20.08.2004. The defendant No.3 presented an application requesting the court to set aside ‘No W.S.’ order however learned Trial Judge rejected the application tendered by the defendant no.3 in view of order passed on 28.11.2006. In the meanwhile, the defendant no.3 along with defendant no.1 presented a composite written statement and extended the request to the trial judge to set aside ‘NO WS’ order and accept the written statement. However, the said application tendered at Exh.46-D by the defendants No.1 and 3 came to be rejected by trial judge by order dated 04.04.2007. 4 3. I have perused the application as well as the orders passed by the trial judge. It is to be noted that in the application filed by the petitioner no.1 it is contended that respondent no.1 was suffering from chikan Gunia and resp no.3 was required to stay with him, as such he could not take steps for presentation of the written statement. Even though earlier request for presenting written statement was rejected by the trial court, the petitioner no.1 can be permitted to participate in the proceedings by presenting his written statement. Hence, considering the nature of litigation and considering the relationship between the plaintiff and defendant I deem it appropriate to allow the petitioners to present their written statement. However for the lapses committed by the defendants in making delay, in presenting the defence, the suit presented by the plaintiff remained undecided and the litigation is protracted. The plaintiff therefore deserves to be compensated for the delay occurred due to failure of the defendants in presenting their defence. While considering the request made by the petitioner-original defendants I deem it appropriate to direct them to pay costs of Rs.3,000/- (Rs. Three thousand) payable to the plaintiff. Defendant shall deposit amount of costs before trial court within a period of four weeks from today. Original plaintiff-respondent no.1 shall be entitled to claim the amount of costs, which would be deposited by the petitioners-original defendants No.1 and 2. The writ petition is allowed. 5 Order passed below Exh.46-D dated 04.04.2007 by the Civil Judge J.D. Georai shall stand quashed and set aside. Trial Court is directed to accept on record the written statement already presented by defendants No.1 and 3. Rule is accordingly made absolute. ( R. M. BORDE, J. ) ..... aaa/2733.03