* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10660 OF 2009 1. Ankush Narayan Chaudhari ..............Petitioners V/S. 1. Jaywant Manick Desai & Ors. ..........Respondents ------------ Mr. Prasad Dani i/by. Divya Shah Associates, adv.for petitioners. Mr. Rajesh S. Datar i/by. Shri. N.D. Jaywant, adv.for respondents no.1 to 6. Mr. Vinod Mahadik, adv.for respondent no.7-BMC. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 19TH DECEMBER, 2009. P. C. :- 1. Heard learned counsel for the parties. 2. This Writ Petition filed under Article 227 of the Constitution of India relates to legality and validity of the order dated 3rd December, 2009 passed by the Bombay City Civil Court on the Notice of Motion taken out by the petitioners at the end of trial for filing additional written statement. * 2 * 3. The brief facts that are required to be stated to consider the application are as follows :- . Respondents no.1 to 6 have filed the suit herein for a declaration that action of respondent no.7 in regularising the work of additions and alterations done by the petitioners in the temple premises of petitioner no.6, is illegal, unauthorised and that the decision is liable to be revoked and cancelled. They also seek mandatory order directing the petitioners to demolish the work of additions and alterations. The appellants filed their written statement on 21st November, 2006. Respondent no.7 filed its written statement by 12th September, 2007. The issues came to be framed by 23rd April, 2008 and the evidence in the suit completed on 18th September, 2009. The arguments by both the sides were completed on 13th November, 2009. However, it appears that some legal submissions were to be further advanced on behalf of respondents no.1 to 6 and to be replied to by the petitioners as can be seen from the impugned order, wherein it is stated that lastly on 13 “ th November, 2009 both the parties were completeed their arguments. But, at the instance of the learned counsel for the plaintiff, the matter was adjourned for legal submissions and reply arguments of defendants . This is the stage at which the petitioners took out Notice of ” Motion under Order 8 Rule 9 CPC for permission to file additional written statement after condoning the delay in filing the same. The learned Judge rejected the Notice of Motion holding that there is no provision for filing * 3 * additional written statement after conclusion of the suit and when the court is on the verge of dictating the judgment. 4. Mr. Dani, the learned counsel for the petitioners, submits that, unfortunately the petitioners and their counsel appearing in the Bombay City Civil Court had lost sight of two of the contentions already taken in the written statement i.e. the contention as regards the jurisdiction of the Bombay City Civil Court to entertain and try the suit and lack of cause of action in the plaint. The petitioners now also seek to contend that respondents no.1 to 6 have no locus- standi to file the suit. Mr. Dani submits, that these three contentions desired to be taken by the petitioners being the questions of law, can be raised at any stage, including the stage of First Appeal and hence the learned Judge ought to have atleast allowed the petitioners to raise the issues, even without filing of additional written statement and considered the same. 5. Mr. Datar, the learned counsel for respondents no.1 to 6 points out that since two of contentions were already taken up in the written statement of the petitioners at paras-2 and 3 thereof. It was open for the petitioners to make an application for recasting of the issues at the appropriate time, so as to avoid inconvenience to the respondents, as well as, to the court. 6. Be that as it may, in my opinion, since the contentions sought to be raised now are contentions of law, the petitioners should get an opportunity to make submissions thereon. This would also benefit the appeal court , as and when * 4 * and if the matter is taken up to the higher court by way of an appeal. Both the counsel have stated that neither side desires to lead any evidence on the questions to be raised. In the circumstance, I am inclined to grant this opportunity to the respondents on condition that the respondents are compensated by way of costs. 7. Both the counsel also agree that the contentions as regards the cause of action in the suit and the locus-standi of respondents no.1 to 6 would be covered by Issue No.4 as already framed. The parties need to only advance their specific submissions on these aspects. The additional issue that is required to be framed is of jurisdiction of the court. By the consent of the parties, the following additional Issue is framed. “ 1. Whether the Bombay City Civil and Sessions Court has jurisdiction to entertain and try the suit ? The parties to advance their submissions on the additional issue framed above, as well as, on the aspect of locus-standi of respondents no.1 to 6 in filing the suit and cause of action in the suit. The matter is reported to be placed on the board before the Bombay City Civil Court on 21st December, 2009. Both the counsel agree that submissions on the three aspects will be completed by them on the same day and none will ask for an adjournment before the Bombay City Civil Court. 8. The petitioners are directed to pay costs quantified at Rs.15,000/- (Rs. Fifteen Thousand Only) to respondents no.1 to 6 to be paid on/or before 21st * 5 * December, 2009. With the above directions, the Writ Petition is disposed off. . All concerned to act on a copy of this order authenticated by the Sheristedar/Personal Assistant of this Court. [SMT. R.P. SONDURBALDOTA, J]