1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1111 OF 2008 Vijaykumar s/o Naganathappa Kundumble age 36 years, occ. business r/o Peth Mehaboob Ganj Nilanga, Tq. Nilanga, Dist. Latur. .. PETITIONER VERSUS 1 Ashok Shivabasappa Sorade age 36 years, occ. agril & business r/o Sorde Galli, Main Road Nilanga Dist. Latur. 2 Suresh s/o Sivbasappa Sorade age 39 years, occ. agril r/o Sorade Galli, Old Main Road Nilanga Tq. Nilanga, Dist. Latur. 3 Nagnathappa s/o Sangappa Kukdumbale age 75 years, occ. business r/o Peth Mehaboob Ganj, Nilanga Tq. Nilanga, Dist. Latur 4 Sow Sarubai w/o Nagnathappa Kudumbale age 65 years, occ. household r/o Peth Mehaboob Ganj, Nilanga Tq. Nilanga, Dist. Latur. 5 Mallikarjun s/o Naganappa Kudumbale age 48 years, occ. Medical Practitioner Kolle Galli, behind post office, Nilanga 2 Dist.Latur. 6 Veernath Nagnathappa Kudumbale age 46 years, occ. service r/o Nilanga presently residing at Andheri, West Lokhandwala Mumbai 7 Basawaraj s/o Nagnathappa Kudumbale age 34 years, occ. Medical practitioner Shivaji Nagar, Nilanga Tq. Nilanga, Dist. Latur. 8 Shivraj s/o Nagnathapa Kudumbale age 32 years, occ. service r/o Nilanga, now residing at Washi New Mumbai .. RESPONDENTS Mr. S.C. Havelikar, Advocate holding for Mr. S.S. Halkude, Advocate for the petitioner. ===== CORAM : R. M. BORDE, J. DATE : 26 th November, 2009 ORAL JUDGMENT : 1 Heard learned counsel for the petitioner. None appears for the respondents though served. 2 At the time of issuance of notice, the parties were informed that the petition would be disposed of finally at the stage of admission. However, 3 inspite of service of notice, none appears for respondents. Hence, matter is taken up for final disposal at admission stage. 3 Rule. 4 Trial court has directed to set aside the order passed in respect of proceeding with the matter in absence of defendant/petitioner. However, the court has refused to accept written statement placed on record by the defendant. Respondents herein presented suit claiming decree of declaration of ownership and perpetual injunction in respect of the agricultural property. Suit was presented in the year 2003. However, inspite of service of summons, defendant no. 1 did not appear. As such, trial court directed to proceed with the suit in the absence of the defendant. Defendant caused appearance belatedly in the year 2007 and tendered an application to the court for setting aside the order passed earlier as well as requested the court to accept the written statement placed on record. Trial court found that the application does not set out any reason in respect of failure on the part of the defendant to take steps within prescribed period and as such, refused to permit the defendant to place on record his defence. At the same time, trial court exercised discretion in favour of the 4 defendant and set aside the order passed earlier on 5-12-2003 directing to proceed against the defendant in his absence. 5 Reason set out in the application for delayed appearance of the petitioner / defendant is that he (defendant) was out of station for considerable period in connection with his business transaction and he sustained huge loss in business and returned back only after 1-8-2006. He met with vehicular accident on 27-8-2006 and was hospitalised. Defendant as such appeared in the matter in July 2007 and presented his defence. The reason set out in the application appear to be genuine. Plaintiffs / respondents herein have not caused their appearance before this court. Trial court while exercising discretion in favour of the defendant in setting aside ex-parte order passed on 5-12-2003, however, has refused permission to take on record written statement submitted by the defendant. Once the order to proceed exparte against the defendant is set aside, it will be appropriate for the trial court to permit the defendant to place on record his written statement. Order passed by the trial court is erroneous and therefore requires to be quashed and set aside. However, at the same time, considering the fact that defendant /petitioner is instrumental in causing delay in deisposal of litigation, he shall have to be saddled with cost. In 5 view of the reasons set out above, the petition is allowed. Order passed by the trial court on 6-8-2007 is quashed and set aside. Trial court is directed to accept written statement placed on record by petitioner however, on condition of deposit of cost of Rs.5,000/- by the petitioner before the trial court within a period of four weeks from today. In the event of failure to deposit cost within the time stipulated above, order passed in this petition shall be deemed to have been revoked. Plaintiffs/respondents herein shall be entitled to withdraw the amount of cost that will be deposited by defendant no.1. Rule is accordingly made absolute. ( R. M. BORDE, J.) dyb/office/wp1111.08.odt