(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1521 OF 2011 Hiralal s/o. Hari Dhakre, Age : 54 years, Occupation : Lawyer, R/o. Sillod, Taluka : Sillod, .. Petitioner District : Aurangabad. (Original defendant) versus 1. Mohanlal s/o. Arjundas Shamnani, Age : 56 years, Occupation : Agriculture & Business, R/o. 240, Satguru Niwas, Tilaknagar, Sillod, District : Aurangabad. .. Respondents (No.1 - Original 2. The Tahsildar, Sillod, plaintiff & Taluka : Sillod, Nos.2 & 3 - District : Aurangabad. Original defendant 3. The Collector, nos.2 & 3) Aurangabad. ....................... Mr. V.N. Damale, Advocate, holding for Mr. S.K. Barlota and Mr. I.G. Durrani, Advocates, for the petitioner. Mr. R.F. Totla, Advocate, for respondent no.1 / caveator. (2) Mr. S.K. Tambe, Assistant Government Pleader, for respondent nos.2 and 3. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 18TH APRIL 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. V.N. Damale, holding for Advs. Mr. S.K. Barlota and Mr. I.G. Durrani, for the petitioner; Adv. Mr. R.F. Totla, for respondent no.1, and learned AGP Mr. S.K. Tambe, for respondent nos.2 and 3. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. The challenge by petitioner / defendant no.1, an Advocate, is to the order dated 12-11-2010, passed by the learned 6th Joint Civil Judge (Senior Division), Aurangabad, below Exhibit 59 in Regular Civil Suit No. 638/1998, rejecting his prayer to set aside "no written statement order" and refusing to accept it on record. (3) 4. Adv. Mr. Damale, appearing for the petitioner, contends that suit, as filed, was defective and it was amended later on. The amendment application was moved in 2003 and though it was allowed, costs were not paid and hence ultimately the amendment was not accepted. The dispute was resolved in favour of respondent / plaintiff in Writ Petition No. 926/2007 before this court when this court allowed the said petition on 10-4-2008. The prayer for recovery of possession was then added and hence petitioner found it necessary to file written statement. Accordingly, on 19-3-2009, written statement was filed but that was not accepted as order dated 11-4-2004, proceeding without written statement against the petitioner, was still holding the field. The petitioner then filed appropriate application in this respect vide Exhibit 59 on 14th October 2010 and by the impugned order, that application has been rejected. According to him, the suit, as filed, is of the year 1998 and hence the amended provisions of Order VIII Rule 1 of CPC are not relevant in the present matter. 5. Adv. Mr. R.F. Totla, for respondent no.1 / plaintiff and learned AGP Mr. S.K. Tambe, for respondent nos.2 and 3, have supported the impugned order. 6. Adv. Mr. Totla points out that after 11-4-2001, the (4) petitioner / defendant did not take any steps and after order of this court dated 10-4-2008, sought time to file written statement. Thereafter, on 7-3-2009, he filed another application and sought direction to respondent no.1 / plaintiff to value his suit correctly and another application was moved seeking time to file written statement after disposal of that objection. Thereafter, on 19-3-2009, written statement came to be filed. On 4-2-2010, respondent no.1 filed an application and gave details pointing out how the matter was dealt with by the petitioner. On 25-3-2010, present petitioner filed his reply to it and on 1-10-2010, trial court found that setting aside of "no written statement order" was necessary. Thereafter on 14-10-2010, application at Exhibit 59 came to be filed and it was opposed on 26-10-2010 by present respondent no.1. He invites attention to judgment delivered by me at Nagpur Bench, reported at 2006(5) Bom.C.R. 796, in the case of Pundlik Laxman Kawarse & another Vs. Baban Pundlik Kawarase & others, and another judgment of learned Single Judge of this court, reported at 2009 B.C.I. 61, in the case of Sudhirkumar Krishnalal Sahani Vs. Nagar Parishad/Nagar Palika/Municipal Council & another, to urge that in such circumstances, no interference is warranted. 7. In reported judgment delivered by me at Nagpur Bench, in the case of Pundlik Laxman Kawarse & another Vs. (5) Baban Pundlik Kawarase & others (supra), suit filed was after amended CPC came into force i.e. it was filed on 9-7-2002. The other reported judgment in the case of Sudhirkumar Krishnalal Sahani Vs. Nagar Parishad/Nagar Palika/Municipal Council & another (supra), again reveals the same position. 8. Here, the suit has been filed in the year 1998 and there was no prayer for restoration of possession at that time. In his application for setting aside "no written statement order", petitioner / defendant no.1 has contended that in the absence of that prayer, he was of the view that filing of written statement was not necessary and suit needed to be dismissed. After the amendment came to be effected, written statement was found essential and hence necessary steps were taken. 9. The amendment was allowed earlier on 19-1-2004 by the trial court and it was accordingly effected on 27-1-2004. However, that was without paying any costs and hence it was deleted. Ultimately on 10-4-2008, this court permitted respondent / plaintiff to effect amendment. After 10-4-2008 till 2-3-2009, no steps were taken and on 2-3-2009, time was sought to file written statement. On 7-3-2009, application was filed by the petitioner seeking direction against plaintiff for valuing suit properly and he also moved another application seeking (6) postponement of filing of written statement till that application was decided. In this background, on 19-3-2009, he filed his written statement. The subsequent dates thereafter are already briefly narrated by me above. 10. The conduct above shows that the petitioner / defendant has tried to delay the disposal of suit by raising various objections. 11. Contention that suit needed to be dismissed in the absence of express prayer for recovery of possession cannot be stated to be wholly misconceived. Hence I am inclined to give the petitioner, opportunity to file written statement. Learned Advocate for the respondent / plaintiff has during arguments, contended that the petitioner is using suit premises for running a hotel and premises are situated in a market place where its turnover is not less than Rs. 25,000/- per day. In view of this disclosure, I find that interest of justice can be met with by directing the petitioner to pay to plaintiff amount of Rs. 1,00,000/- as costs for belated filing of written statement and for delaying its disposal. 12. In the result, the petition is allowed. (7) (i) The impugned order dated 12-11-2010, passed by the learned 6th Joint Civil Judge (Senior Division), Aurangabad, below Exhibit 59 in Regular Civil Suit No. 638/1998, is quashed and set aside. (ii) The petitioner is permitted to file his written statement, however, subject to payment of costs of Rs. 1,00,000/- [Rupees one lac] by the petitioner to respondent no.1 / original plaintiff. The said amount be deposited on or before 6th June 2011 before the trial court. If the amount is so deposited, the plaintiff shall be free to withdraw it. (iii) If the amount is so deposited, the trial court shall accept written statement on record and attempt to decide the Civil Suit as early as possible and in any case, by 31st December 2011. (iv) If the amount is not deposited within the stipulated period, the petition shall stand dismissed and the impugned order shall stand revived automatically without reference to court. 13. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE