1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 1173 OF 2010. Rajaram Chinduji Aasutkar -: versus :- Anusaya Namdeo Awthale Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 13, 2010. Heard finally by consent of Shri V.D. Darne, learned counsel for petitioner and Shri M.M. Agnihotri, learned counsel for respondent. Shri Agnihotri, learned counsel is requesting for short adjournment to file reply. However, considering the nature of controversy, his request is rejected. Learned counsel for petitioner states that the application at Exh.27 on which the impugned order rejecting permission to file written statement under Order 8 Rule 1 of C.P.C. has been passed, ought to have been considered in the background of earlier application for adjournment filed by him and granted by the trial Court. He contends that the reason for not filing written statement is apparent from the earlier applications which are granted. Shri Agnihotri, learned counsel without prejudice to his rights in the matter and only to assist the court points out that the application at Exh.27 does not contain any 2 exceptional circumstances or reasons sufficient under Order 8 Rule 1 of C.P.C. The trial Court has correctly applied its mind and rejected that application. With the assistance of both the learned counsel I have perused the impugned order as well as the applications. It is apparent that the petitioner had on earlier date i.e. on 27.08.2009 vide Exh.22 made a grievance that the records of T.I.LR. were not available because the measurement sheet was not submitted to his office. This application Exh.22 was opposed by the respondent / plaintiff by pointing that the period of 90 days was already over and application was to be rejected, accordingly the application was rejected by the trial Court on 27.08.2009. Thereafter on 10.09.2009 the petitioner / defendant moved another application and pointed out that because important documents were not within his knowledge, he could not file written statement and pointed out that case therefore proceeded without written statement. He further stated that the Written statement is being placed on record on that date. The application has been rejected by the trial Court as the period of 90 days was already over. Perusal of the earlier order below Exh.22 shows that the trial Court has rejected that application only because period of 90 days was over and it has not recorded any finding about the non availability of report of T.I.L.R. In it even the say given by the respondent / plaintiff does not point out that any such report or copy was already available. In this background, when after receipt of those documents subsequent application was filed, the trial court ought to have considered these reasons to find out whether the 3 defendant before it was prohibited by just and exceptional reasons from filing written statement on record. There is no consideration of this aspect. The learned counsel for respondent is right when he points out that Exh.27 is not drafted properly. However, for any such error, the petitioner / defendant cannot be made to suffer. The necessary developments were already on record of the trial court and the same could have been looked into by it in the light of Order 8 Rule 1 of C.P.C. In the circumstances, the impugned order passed below Exh.27 on 13.01.2010 is quashed and set aside. Petitioner is permitted to move appropriate application for recalling the order of proceeding further without written statement and for accepting written statement on record. The same shall be however, subject to payment of cost of Rs.2000/- by the petitioner / defendant to respondent / plaintiff by 30.04.2010. If the costs are so paid and in the meanwhile appropriate application for that purpose is filed, trial Court shall give opportunity to respondent / plaintiff to file appropriate reply to it and thereafter shall decide the same in accordance with law. The observations made by this court are only for the purpose of deciding the controversy raised and shall not influence the trial Court while deciding the application so moved by the petitioner before it. With these observations writ petition is disposed of, with no order as to costs. JUDGE Rgd.