:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.561 OF 2008 PETITION NO.561 OF 2008 PETITION NO.561 OF 2008 Al-Amin Co-Op.Hsg. Society Ltd. ..Petitioner V/s M/s. Nakoda Jain & Associates & Ors. ..Respondents. Mr. J.S. Kini i/b Suresh Dubey for the petitioner Mrs. Rajlaxmi Mohandas i/b Almt Legal for repsondent No.1. CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 6TH JUNE, 2008 : 6TH JUNE, 2008 : 6TH JUNE, 2008 P.C. 1. This writ petition impugns the order dated 10-11-2007 passed by the Additional Judge, Small Causes Court and Jt.C.J.S.D. Pune, whereby the application of the petitioner to set aside no written statement order and to take written statement on file came to be rejected. 2. The Vakalatanama on behalf of the petitioner was filed some time on 20-1-2005 and an application was made for granting time to file written statement and accordingly the matter was adjourned twice thereafter. The petitioner thereafter filed an application under order 7 rule 11 CPC,. for rejection of plaint. :2: 3. It is the case of the petitioner-society that since the application under order 7 rule 11 CPC was pending they did not file their written statement. According to the petitioner they were wrongly advised to wait until disposal of the application under order 7 rule 11 CPC and therefore written statement was not filed by them within the prescribed period of 30 days and extended period of 90 days.It is also contended that as Chairman of the petitioner-society was unwell he could not follow up the matter with his advocate. Ultimately ’no written statement’ order came to be passed on 15-6-2007. The learned Counsel for the respondent on the other hand, opposed the petition and contended that no exceptional circumstances have been made out to condone the delay in filing the written statement. 4. On perusal of the impugned order and the material on record, I find that the petitioner were in fact pursuing the matter in the Trial Court and the application under order 7 rule 11 ultimately came to be rejected on 15-6-2007. It is only thereafter that the application was made for setting aside the :3: order of ’no written statement’. The medical certificate of chairman is also produced on record to show that he was under the treatment of a doctor for heart-ailment. 5. Considering the facts and circumstances of the case, in my view the fact that the petitioner were pursuing their application under order 7 rule 11 the petitioner cannot be said to have been negligent in the matter nor can any malafides be attributed to them. The Trial Court ought to have been more pragmatic in its approach in considering the fact that application under order 7 rule 11 CPC was pending before it and the facts would fall under the umbrella of special circumstances and the respondent could have been compensated by awarding costs. 6. In this view of the matter, the order of the Trial Court is set aside subject to costs of Rs.10,000/- to be paid by the petitioner to the respondents. The petitioner to file their written statement within two weeks. Payment of costs would be condition precedent. :4: 7. Writ petition is disposed of. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)