wp3391.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.3391/2011 Purushottam Rajaram Burile -vs- Rajkumar Tulsiram Khobragade and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri Bhongade, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : 04.10.2011. By this petition, the petitioner impugns the order passed by the trial Court on 23/06/2011 allowing an application filed by the respondents-defendants and permitting the respondents to file the written statement subject to payment of costs of Rupees Five Hundred. It appears on hearing the learned counsel for the petitioner and on perusal of the applications for setting aside the “No W. S.” order and for permission to file the written statement that the defendant No.2 was the mother of the defendant No.1 and was almost eighty years of age. It was stated in the application that the defendant No.2 was bedridden for a period of more than two years and on 01/03/2008 the defendant Nos.1 and 2 had prepared a reply and had also affirmed the same. It was stated in the application that since there was nobody to look after the old and ailing wp3391.11.odt 2/3 defendant No.2, the defendant No.1 was required to look after her and in this background, the original reply/written statement which was verified by the defendants was not handed over to the counsel for the defendants and the defendants failed to file the written statement in time. After the defendants became aware of the “No W. S.” order dated 10/01/2008, they immediately applied for setting aside of the “No W. S.” order. The trial Court, by the impugned order dated 23/06/2011 allowed the application filed by the defendants and granted permission to file the written statement subject to payment of costs of Rupees Five Hundred, in the interest of justice. Though the impugned order dated 23/06/2011 is cryptic and does not record many reasons for setting aside the “No W. S.” order except that it was necessary to allow the application in the interest of justice, the order cannot be set aside in the facts and circumstances of the case. The defendant No.2 appears to be an aged lady and was ill and bedridden during the relevant time. In this background, since the defendant No.1 had to look after his old and ailing mother, the written statement could not be filed though it was affirmed and verified. Merely because the application was not supported by any medical certificate, the same could not have been rejected, more so when the reasons for not presenting the written statement in time were supported by the affidavit of the defendant. In the facts and circumstances of the case, the trial Court rightly found that it was necessary in the interest justice wp3391.11.odt 3/3 to permit the defendants to file the written statement. Merely because many reasons are not recorded by the trial Court for allowing the application filed by the defendants, it cannot be said that the order is liable to be set aside. The judgments reported in 2004(4) Mh. L. J. 739 and 2005(2) Mh. L. J. 775 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. The Hon’ble Supreme Court has held in the judgment reported in 2005(2) Mh. L. J. 775 that the extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be. In the instant case, the circumstances are exceptional and the reason that it was necessary to allow the application in the interest of justice, though brief, is recorded in writing. The other judgment reported 2004(4) Mh. L.J. 739 also cannot be made applicable to the facts of this case as the permission was not granted by the trial Court in the instant case casually and on being unmindful of the provisions of Order 8 of the Code of Civil Procedure. Since the circumstances in this case were exceptional and since it was necessary to permit the defendants to file the written statement in the facts and circumstances of the case and in the interest of justice, the order cannot be faulted with. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE