1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 575 OF 2010 Zumbar s/o Murlidhar Dhatrak, Age 39 yrs., Occu. Agri., R/o. Mendhvan, Tq. Sangamner, Dist. Ahmednagar . ....Petitioner. Versus Ramrao s/o Radhu Badhe, Age 54 yrs., Occu. Agri., R/o. Mendhvan, Tq. Sangamner, Dist. Ahmednagar. ....Respondent. Shri. R.L. Kute, Advocate for the petitioner. Shri. S.K. Shinde, Advocate for respondent. CORAM : R.M. BORDE, J. DATE : 31st March, 2010 ORAL JUDGMENT : 1. Heard respective counsel appearing for parties. 2. Rule. With the consent of parties, the petition is taken up for final disposal at the admission stage. 2 3. The order passed by the Joint Civil Judge, Junior Division, Sangamner on 6th of October 2009 below Exh. 32 in Regular Civil Suit No. 187/2006 is subject matter of challenge in this petition. 4. Respondent herein presented a suit bearing Regular Civil Suit No. 187/2006, claiming a decree of perpetual injunction against the petitioner/original defendant. The suit is stated to be pending for final disposal. During the continuation of suit before the Trial Court, in certain intervening developments, the defendant could not produce the written statement, even the suit was listed before the Court. In the year 2009 an application was presented by the petitioner/original defendant requesting the Court to set aside "No W.S. order" passed earlier and to accept the written statement which was being tendered along with the application. The Trial Court after considering the contentions raised by the original plaintiff was pleased to reject the application and the said order of rejection of the application tendered by the petitioner at Exh. 32 is the subject matter of challenge in this petition. 5. The petitioner/original defendant has pointed out that there was an another suit presented along with the instant suit being Regular Civil Suit No. 188/2006 presented on the same date. It is contended that the defendant is a money lender and the sale deed in question which is the basis of claim raised by the plaintiff/respondent herein was executed by way of security for the loan advanced. In the similar circumstances, the 3 companion suit presented against the respective defendants was compromised and the same was withdrawn on 13.12.2006. It is the contention of the defendant/original petitioner that it was decided between the parties to enter into compromise in the instant suit also and the defendant had assured to withdraw the suit. However, such a pursis was not presented on record in the instant matter. The suit was classified in sine-die category. It is stated that in the meantime, the order of "No W.S." was passed and when it was revealed to the defendant, he presented the application in the year 2009. In the application, the defendant has also contended that there were several litigations initiated against the plaintiff as he regularly transacts in money lending business. One of such suit mentioned in paragraph No. 7 of the application bearing 310 of 2006 is stated to be pending. Apart from these allegations, the petitioner herein has placed on record a copy of the chargesheet in pursuance of complaint lodged by one Prabhakar Ghule for the offence punishable under sections 33 (B) (b) and 33 of the Bombay Prevention of Money Lending Act. It is contended that the criminal prosecution initiated against the respondent/original plaintiff is still pending. The material placed on record is sufficient to draw inference prima facie that the allegations contained in the application presented by the defendant/ petitioner herein that the respondent/ original plaintiff deals in money lending business, does not appear to be without any basis. 6. In these circumstances, the Trial Court ought to have entertained 4 the application and extended an opportunity to the petitioner/original defendant to place his contentions before the Court and to contest the suit on its own merits. The order passed by the Trial Court, therefore, in this situation, need to be quashed and set aside and same is accordingly quashed and set aside. The Trial Court is directed to accept the written statement tendered on record along with the application dated 29.9.2009 and proceed to decide the controversy in between the parties in accordance with provisions of law. 7. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. [ R.M. BORDE, J. ] ssc/wp8726.09