1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 1164 OF 2008 1. Rameshwarappa s/o Vasantappa Gondhal, Aged about 40 years, Occ. Agriculturist. 2. Prakash s/o Sahebrao Ghuge, Aged about 30 years, Occ. Agriculturist. 3. Gajanan s/o Sawai Jadhav, Aged about 40 years, Occ. Agriculturist, All r/o Kinhiraja, Tah. Malegaon, Distt. Washim. ... ... PETITIONERS VERSUS 1. Santosh s/o Ramakant Kulkarni, Aged about 23 years, Occ. Agriculturist, 2. Smt. Madhuri s/o Ramakant Kulkarni, Aged about 60 years, Occ. Household, 3. Sau. Alka w/o Nandakishore Pathak, Aged about 35 years, Occ. Household, 4. Sau. Ujjwala w/o Sudhakar Pathak, Aged about 32 years, Occ. Household. 5. Sau. Versha w/o Ravindra Pathak, Aged about 26 years,Occ. Household. Respondent nos. 1& 2 r/o Kinhiraja, Tah. Malegaon, Dist. Washim. Respondent no.3 r/o Mungla, Tah. Malegaon, Dist. Washim. Respondent no.4 r/o Chiwra, Tah. Malegaon, Dist. Washim. 2 Respondent No.5 R/o Rajapeth, Amravati, Tah. & Distt. Amravati. ... ... RESPONDENTS Mr. V.B. Gawali, Advocate, for the petitioners. Mr. M.S. Sambare, Advocate, for respondent no.1. None for respondent nos. 2 to 5, though served. CORAM : Smt. Vasanti A. Naik, J. DATED : DECEMBER 1, 2008 ORAL JUDGMENT 1. Rule. Rule made returnable forthwith. Petition is heard finally at the stage of admission as a notice of final disposal was issued to the respondents by an order dated 13/3/2008. 2. By this petition, the petitioners impugn the orders passed by the Civil Judge, Jr. Dn., Malegaon, on 8/6/2007, 10/7/2007 and 11/1/2008. 3. Few facts giving rise to the petition are stated thus- The petitioners are the original defendants. A suit was filed by the respondents for partition and separate possession of the suit property. The respondents had also claimed mesne profits. The suit was registered on 23/1/2007 and on 8/2/2007, the summons were served on the petitioners. After the service of summons, the matter was fixed before the Court for the first time on 26/2/2007. On 3 26/2/2007, time was sought by the petitioners for filing of the written statement. The matter was adjourned to 21/3/2007. On 21/3/2007, the counsel for both the parties were present, but the Court was on leave. On 18/4/2007, the petitioners were present in person and sought for time to file written statement. Time was granted till 27/4/2007. On 27/4/2007 again the counsel for the petitioners sought time to file written statement as some necessary documents were required to be perused. Since the summer vacation intervened, the matter was thereafter listed on 4/6/2007. On 4/6/2007, the counsel for the petitioners, namely Shri D.P. Adamane, Advocate, gave a counsel note as the mother of the counsel for the petitioners had expired on 31st May, 2007. In view of the aforesaid reason, the counsel for the petitioners was unable to file the written statement on 8/6/2007 and an adjournment was sought on that ground. The Court, however, rejected the application for adjournment and passed an order of “No W.S.” on 8/6/2007. The petitioner filed an application on 27/6/2007 for setting aside the order of “No W.S.” and seeking permission to file the written statement on record. The application was opposed by the plaintiffs/respondents, as the written statement was not filed within 90 days. By the impugned order, the trial Court 4 rejected the application filed by the petitioners for setting aside the order dated 8/6/2007 as the petitioners had not filed an affidavit in support of the application and there were no reasons stated by the petitioners as to why they did not file the written statement before 8/6/2007. The petitioners again filed an application under Section 151 of the Code of Civil Procedure, along with an affidavit, praying for setting aside the orders dated 8/6/2007 and 10/7/2007, and seeking permission to file written statement on record. This application was also dismissed as not tenable, by the order dated 11/1/2008. The petitioners have impugned the three orders in the instant writ petition. 4. Shri V.G. Gawali, the learned counsel for the petitioners, submitted that the trial Court committed an error in passing the order of “No W.S.” and also the subsequent orders dated 10/7/2007 and 11/1/2008. It is submitted on behalf of the petitioners that the matter was listed before the trial Court on 8/6/2007 for filing written statement and on that date, there was a genuine and bona fide reason for not filing the written statement as the mother of the counsel for the petitioners had expired on 31/5/2007 and it was not possible for the counsel for the petitioners, in those circumstances, to file the 5 written statement on behalf of the petitioners. The learned counsel for the petitioners submitted that “No W.S.” order cannot be passed merely because the written statement is not filed within a period of 90 days from the date of service of summons and in special and exceptional cases, the Court can permit the defendants to file written statement even after a period of 90 days. 5. Shri M.S. Sambare, the learned counsel for the respondent no.1, supported the orders passed by the trial Court, and submitted that the Court was justified in passing the “No W.S.” order as the same was not filed within a period of 90 days from the service of the summons. The learned counsel for the respondent no.1 admitted the fact that the counsel note was filed by the counsel for the petitioners, but submitted that the trial Court was justified in rejecting the application Exh. 16, as it was not supported by an affidavit. The learned counsel for the respondent no.1 sought for the dismissal of the writ petition. 6. I have considered the submissions made on behalf of the parties and have also perused the impugned orders dated 8/6/2007, 10/7/2007 and 11/1/2008. It is clearly mentioned by the petitioners in the application at Exh.16 that the mother of the counsel for the 6 petitioners had expired and it was, therefore, not possible for the counsel for the petitioners to remain present in the Court on 8/6/2007, and also to file written statement on that date. It is in these circumstances, an adjournment was sought by the petitioners for filing the written statement. The Court, however, failed to consider the reason stated by the petitioners in the adjournment application and passed the order of “No W.S.” on 8/6/2007. The Court ought not have rejected the application Exh..16 merely because it was not supported by an affidavit of the petitioners as the fact that the counsel note was filed by the counsel for the petitioners was not disputed by the respondents. In the interest of justice and in the facts and circumstances of the case, it was necessary for the trial Court to have granted time to the petitioners to file the written statement after 8/6/2007 for the reasons stated in the application dated 8/6/2007. The trial Court was not justified in passing “No W.S.” order on 8/6/2007. Similarly, the Court was not justified in passing the order dated 10/7/2007, rejecting the application for setting aside “No W.S.” order merely because the application was not supported by an affidavit and the written statement was not filed within a period of 90 days. The plaintiffs had not disputed the statement of fact about the 7 death of the mother of the counsel for the petitioners and seeking of adjournment on 8/6/2007 on that account. It is, therefore, necessary to quash and set aside the impugned orders dated 8/6/2007, 10/7/2007 and 11/1/2008. 7. For the reasons aforesaid, writ petition is allowed. The impugned orders dated 8/6/2007, 10/7/2007 and 11/1/2008 are hereby quashed and set aside. It appears that the petitioners have filed their written statement on 27/6/2007. The same may be accepted by the trial Court, on record. 8. At the time of issuance of notice of final disposal of the writ petition by an order dated 13/3/2007, the petitioners were directed to deposit costs of Rs. 3,000/- to be payable to the plaintiffs/ respondents, in case the petitioners succeed in this petition. Since the petitioners have succeeded, the costs of Rs. 3,000/- are payable to the respondents. The respondents are permitted to withdraw the amount of Rs. 3,000/- deposited by the petitioners in this Court. Rule is made absolute in the aforesaid terms. No costs. (Smt. Vasanti A. Naik) JUDGE RMP