1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4362 OF 2004 1 Tukaram Jairam Thakur age 68 years, occ. agril r/o Katgaon, Tq. & Dist. Latur. 2 Dhondiram s/o Atmaram Thakur age 33 years, occ. agri r/o Katgaon, Tq. & Dist. Latur. 3 Subhash s/o Sakharam Thakur age 48 years, occ. agri r/o Katgaon, Tq. & Dist. Latur. 4 Sunil s/o Subhash Thakur age 19 years, occ. agri. r/o Katgaon, Tq. & Dist. Latur. 5 Anil s/o Subhash Thakur age 18 years, occ. agri r/o Katgaon, Tq. & Dist. Latur. 6 Sunandabai w/o Subhash Thakur age 41 years, occ. agri. & household r/o Katgaon, Tq. & Dist. Latur. 7 Kamalbai w/o Babruwan Shinde age 35 years, occ. household r/o as above. .. PETITIONERS VERSUS Suryakant Sitaram Thakur age 33 years, occ. agril. r/o Katgaon, Tq. & Dist. Latur. .. RESPONDENT 2 Mr. V.D. Gunale, Advocate for the petitioners. Mr. S.J. Gaike, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 29 th APRIL, 2010 ORAL JUDGMENT : 1 Heard. 2 Petitioners herein / original defendants are raising exception to the order passed below exh. 31 in Regular Civil Suit no. 373/2001 decided on 5-3-2004 as well as order passed below exh. 27 decided on 11-9-2003. 3 Respondent / original plaintiff instituted suit claiming decree in respect of removal of encroachment as well as possession of the encroached portion alongwith mesne profit. It is not necessary to go into the factual details of the matter. After presentation of the suit, summons were directed to be served and same of the defendants were served on 24-8-2001 and remaining were served on 24-10-2001. After causing appearance, defendants did not present written statement within stipulated period. As such, “No WS” order came to be passed by the trial court on 12-6-2002 and 27-6-2002. All the defendants presented application on 12-8-2003 requesting 3 the trial court to set aside “No WS” order and accept the written statement which was sought to be presented alongwith the application. However, after hearing the contentions raised by the respective parties, trial court rejected the application on 11-9-2003. Petitioners herein / original defendants again presented application on 27-11-2003 urging the trial court to extend time for presentation of written statement in exercise of powers under section 148 of the Code of Civil Procedure so also to review the earlier order refusing them to permission to present their written statement on record. However, subsequent application presented at exh. 31 also came to be rejected in view of order passed on 5-3-2004. Both the orders passed by the trial court are subjected to challenge in this petition by the petitioners / original defendants. 4 It is contended by learned counsel for the petitioner that the defendants have exhibited sufficient cause for extending time for presenting written statement. Defendants for justifiable reasons were not in a position to present written statement within stipulated time and as such, considering the nature of litigation as well as considering the contentions raised by the defendants, trial court ought to have extended an opportunity to them to contest the claim presented by the plaintiff on its own merit. It is further 4 contended that the trial court has erred in holding that the provisions of amended Code of Civil Procedure are applicable and the application tendered beyond prescribed period of 90 days by the defendants for setting aside “No WS” order is not entertainable. According to the learned counsel for the petitioners, suit is presented prior to enforcement of the amended provisions of the Code of Civil Procedure and as such will be governed by un-amended provisions of the Code of Civil Procedure. It is further contended that even otherwise, the provisions of Order 8 Rule 1 of the Code of Civil Procedure are held to be directions in nature and as such, the trial court ought to have extended an opportunity to the defendants to submit their written statement on record. 5 Learned counsel for the respondent as vehemently opposed the contentions raised by the petitioners and supported the order passed by the trial court. It is contended that the trial court has no authority to extend time in exercise of powers under section 148 of the Code of Civil procedure in respect of presentation of writ petition. There is no justifiable cause shown by the defendants to grant any indulgence. 6 I have perused the application as well as the impugned order passed 5 by the trial court. The suit presented by plaintiff is in respect of his entitlement to the immovable property. Plaintiff is claiming removal of encroachment and is also seeking decree of recovery of possession as well as mesne profit. Considering the nature of the dispute, the same being in respect of immovable property, the defendants in all fairness need to be extended opportunity to contest the claim on its own merit. It is also to be taken note of that even as per record, the defendants were served in the month of August and October 2001 and they presented application for setting aside “No WS” order in the month of June 2002. There is no much delay in approaching the court with a request to set aside “No WS” order. It is also to be taken note of that there are no issues framed in the matter and further that the proceeding in the suit are stayed in view of pendency of the instant petition. The cause shown by the defendants for their failure to present written statement within time is reasonable and proper. Normally liberal approach is adopted in the matters in respect of setting aside “No WS” orders. Reason being that the defendants as far as possible should be permitted to contest their claim on its own merit. I am of the opinion that the petition presented by the petitioners need to be allowed and the same is accordingly allowed. Order passed by the trial court below exh. 27 on 11-9-2003 as well as below exh. 31 on 5-3-2004 are quashed and set aside. 6 Application tendered by the petitioner urging the court to take on record written statement sought to be presented by the defendants should be deemed to have been allowed. Defendants as a condition precedent for setting aside the impugned order passed by the trial court, shall pay cost of Rs. 5,000/- to the plaintiff within a period of six weeks from today. In the event of failure to pay cost, order passed in this petition shall be deemed to have been recalled. Since the suit is pending for disposal since 2001, trial court is directed to decide the pending suit expeditiously. Rule is accordingly made absolute. ( R. M. BORDE, J.) dyb/office/wp4362.04.odt