IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO 8040 OF 2008 1. Mohamood A. Inamdar & Ors .. Petitioners V/s. 1. Farooq Musa Inamdar & Ors .. Respondents S.S. Kulkarni, Advocate for the Petitioners Rahul S. Kate, Advocate for Respondent No. 1 CORAM : A.M. KHANWILKAR, J DATE : 03 rd February, 2009 P.C. 1. Heard counsel for the parties. 2. Rule. Rule returnable forthwith, by consent. 3. Mr. Rahul S. Kale, Advocate for Respondent waived service for Respondent No. 1 4. As short question is involved, petition is taken up for final disposal forthwith by consent. 5. This Petitioner under Article 227 of Constitution of India 1 takes exception to the Judgment and Order passed by Civil Judge Senior Division, Baramati, dated 15.10.2008 below Ex. 56-D and 04.09.2008 below Ex. 39-D in Special Suit No. 61 of 2008. Although this petition is jointly filed by original Defendant Nos. 1, 35 and 45, however, it is common ground that the request for condonation of delay in filing written statement will have to be considered only in relation to Defendant No. 1 and not Defendant Nos. 35 and 45 respectively. In so far as, those Defendants are concerned, they are yet to be served. This position is indisputable. Unless, the concerned Defendants are served, question of limitation starting to run to file written statement would not arise. The counsel appearing for the Plaintiff fairly accepts this position. In the circumstances, this judgment proceeds to consider only the grievance of Defendant No. 1 regarding refusal by the Trial Court to condone delay in filing the written statement. 6. In so far as the Defendant Nos. 35 and 45 are concerned, they will be free to file their written statements within the specified time after the date of service of summons in suit. 7. In so far as the Defendant No.1 is concerned, it is not in 2 dispute that he was served on 23.04.2008. He appeared before the Court on 03.05.2008 and asked time to file written statement which was extended from time to time, lastly till 20.08.2008. That explanation was granted notwithstanding, the fact that period of 90 days for filing the written statement had expired on 22.07.2008 itself. Notwithstanding this indulgence shown to the Defendant No. 1, no written statement was filed within the extended time. As a result, on 04.09.2008, when the matter was listed, the Court proceeded to pass ' no written statement ' order against the Defendant No. 1. What is overlooked by the Trial Court is the fact that the Defendant No.1 had moved formal application on 04.09.2008, before the Trial Court for adjournment on the ground that his Advocate was unwell. The Court rejected that prayer and proceeded to pass ' no written statement ' order. Even the said order is subject matter of the challenge in present petition. Accordingly, the entire matter will have to be considered on its own merit. If the Petitioner / Defendant No. 1 comes with the case that his Advocate was unwall and could not tender his written statement on account of non-availabitlity of his Advocate on 04.09.2008 is to be accepted, then the Petitioner / Defendant No.1 is entitled for indulgence. 3 Obviously, non-appearance of Advocate on 04.09.2008 would not absolve the Defendant No. 1 from filing written statement before the specified time which expired on 20.08.2008. It is not the case of Petitioner / Defendant No.1 that the Advocate was unable to present written statement before that date because of his inability. No such case is made out. On this opinion, explanation given by the Petitioner / Defendant No.1 will have to be discarded. Neverthless, as the suir is for partition between the brothers and family members and as the process of serving the Defendants is still in progress, having regard to the fact that there are about 70 Defendants, in the interest of justice and by way of indulgence, written statement of Defendant No.1 will have to be ordered to be taken on record of the Trial Court. That indulgence is shown on condition that the Defendant No. 1 shall pay cost quantified as Rs. 5,000/- to the Plaintiffs. The amount of cost will have to be paid within one week from today. Besides this, written statement will also have to be filed within one week from today before the Trial Court. 8. Failure to comply with any of these conditions will be deemd to have recalled the present order passed by this Court and 4 indulgence shown to the Petitioner / Defendant No. 1 as aforesaid. 9. The Petitioner / Defendant No.1 shall not wait for the formal copy of order passed by this Court today and take that excuse to not to file written statement or to pay costs to the Plaintiffs within one week. 10. Accordingly, this petition stands disposed of in above terms. (A.M. KHANWILKAR, J) 5