KBP 6314-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6314 OF 2008 Hnmant Sidram Deokar ..Petitioner Vs. Sadashiv Mahadeo Anpat ..Respondent ......... Mr.P.J.Pawar, for petitioner. ......... CORAM : A.S.OKA, J.. DATE : 27 th August, 2009. P.C. : 1] Heard learned counsel appearing for the petitioner. The office remark shows that the notice has been duly served to the respondent. On 24 th September, 2008. This court issued notice for final disposal at the admission stage. 2] The petitioner is original defendant and the respondent is original plaintiff. The respondent filed a suit for recovery of a sum of Rs.50,000/­ with interest thereon. The trial court passed an order on the suit directing that the suit will proceed without written statement. The summons was served to the petitioner on 5 th March, 2007. An application was made by the petitioner at exhibit 13 on 27 th August, 2007 praying for setting aside the said order and for permission to file the written statement. The said application has been rejected on the ground that there was no affidavit in support of the said application filed by the petitioner. 2] As stated earlier, the summons was served on the petitioner on 5 th KBP 6314-08.sxw 2 March, 2007 and the date of appearance was fixed as 15 th March, 2007 on which date the petitioner entered his appearance. In the application exhibit 13 the petitioner has stated that on the basis of the cheque which is the subject matter of the suit, the respondent had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner. The petitioner had engaged an advocate in the said complaint. Subsequently, the said advocate joined the judicial service and therefore the petitioner could not obtain papers from the said advocate though the efforts were made by from time to time to contact the said advocate. All these reasons are set out in the application. As pointed out earlier, the time for filing the written statement had expired on 1 st June, 2007. One of the contentions raised by the respondent was that the suit is under Rule 2 of Order 37 of the Code of Civil Procedure, 1908. The said contention appears to be erroneous in as much in the suit it is not stated that the suit is filed under Rule 2 of order 37 of the said Code and the trial court issued summons for settlement of issues. There was more than sufficient explaination in the application exhibit 13 for the delay in tendering the written statement. In fact the reasons are set out which prevented the present petitioner from filing the written statement within the time stipulated by law. Therefore the petition must succeed and I pass the following order: (a) The impugned orders are quashed and set aside. The application made by the petitioner at exhibit 13 is allowed and the trial court is directed to take the written statement of the petitioner on record. (b) As the respondent has not chosen to appear, there will be no order as to the costs. (c) The trial court to act upon an authenticated copy of this order. ( A.S.OKA, J. )