IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2110 OF 2003 Shri Prabhulal Govindlal Thanawala Since deceased, through his legal heirs: 1/1.Mrs.Gunwanti Prabhulal Thanawala & Ors. ...Petitioners V/s. Kantilal Govindlal Thanawala, Since deceased, Through his legal representatives: 1/1.Shri Upendra Kantilal Thanawala & Ors. ...Respondents ...... Mr.A.Y.Sakhare, Sr.Counsel with Ms.Gauri Godse for Petitioners. Mr.K.S.Dewal for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JANUARY 7, 2009. JANUARY 7, 2009. JANUARY 7, 2009. P.C. 1. Heard Counsel for the parties. Perused the relevant Roznama. 2. The first argument of the Petitioners is that the application presented by the : 2 : Respondents/Defendants (Exhibit 77) was not maintainable in law. To buttress this submission, reliance is placed on the decision of the Apex Court in the case of Arjun Singh v. Mohindra Kumar Arjun Singh v. Mohindra Kumar Arjun Singh v. Mohindra Kumar reported in (1964) 5 SCR 946 reported in (1964) 5 SCR 946 reported in (1964) 5 SCR 946. The Supreme Court in the said decision has expounded that once the suit proceeds for pronouncement of Judgment after closure of arguments, no such application could have been entertained in law. 3. In the present case, however, it is noticed that although the Roznama dated 28th August 2002 records that arguments were heard and the case is adjourned for orders, however, after three subsequent adjournments, on 11th October 2002, the Court heard the arguments as is noted in the Roznama and proceeded to adjourn the case for orders. Indeed, the Respondents filed said application (Exhibit 77) on 21st December 2002. In the meantime, after 11th October 2002, the Plaintiff himself moved application for amendment of the Plaint to bring on record heirs and legal representatives of deceased Defendant, which indulgence was shown by the Trial Court. If the : 3 : case was adjourned for Judgment on 28th August 2002, the question of bringing heirs of deceased Defendant on record would not have arisen, since the concerned Defendant is stated to have died on 2nd September 2002. However, that need was felt as the matter was argued afresh on 11th October 2002, which position is reinforced by the noting made in the Roznama in that behalf. If the Suit was proceeded for further arguments on 11th October 2002 obviously, it was imperative for the Plaintiff to take out application for bringing heirs and legal representatives of deceased Defendant on record who had died in anterior point of time on 2nd September 2002. 4. Examined in this perspective, it necessarily follows that although the earlier entries in the Roznama would indicate that the case was adjourned for Judgment, but in fact, the Trial Court treated the Suit to be still pending for completion of other formalities as is evident from the Roznama dated 11th October 2002 and subsequent Roznama dated 7th December 2002 and 16th December 2002, whereby, the Plaint was allowed to be : 4 : amended. 5. If it is so, no fault can be found with the subject Application (Exhibit 77) moved by the concerned Defendants 2 to 7 on 21st December 2002. In that sense, it is not a case of Suit adjourned for Judgment as such, so as to disentitle the Defendants to move any application in terms of the exposition of the Apex Court in the case of Arjun Singh (supra). 6. Counsel for the Respondents has rightly invited my attention to the latest decision of the Apex Court in the case of Lal Devi & Anr. vs. Lal Devi & Anr. vs. Lal Devi & Anr. vs. Vaneeta Jain & Ors. reported in 2007 (6) Mh.L.J. Vaneeta Jain & Ors. reported in 2007 (6) Mh.L.J. Vaneeta Jain & Ors. reported in 2007 (6) Mh.L.J. 67 67 67, which in turn, in similar fact situation while referring to the exposition in the case of Arjun Singh (supra) has observed that the High Court ought to have set-aside the ex-parte decree in Appeal in the interest of justice. In Paragraph 16 of the said decision, the Court has observed that, without delving into the technicalities of the legal questions in the facts of that case, the interest of justice demanded that the ex parte : 5 : decree be set aside. 7. Applying the same analogy, I am inclined to uphold the conclusion reached by the lower Court in the impugned order having noticed that although the earlier entries in the Roznama dated 28th August 2002 records that the case was adjourned for orders, but considering the subsequent entries in the Roznama, it would appear that the case was proceeded further for arguments and also for amendment of the Plaint which presupposes that the case was not adjourned for Judgment as such. 8. In the interest of justice, therefore, the conclusion reached by the Court below that subject application (Exhibit 77) could be legitimately pursued by Defendants 2 to 7, will have to be upheld. 9. The next argument canvassed before this Court is that the Defendants 2 to 7 have failed to make out any sufficient cause for showing indulgence of setting aside no written statement : 6 : order. In the application, it is asserted that the Defendants did not file written statement as they were misled by the Plaintiffs in settlement talk from time to time. It cannot be overlooked that the matter is essentially a suit for partition. That explanation has been accepted by the lower Court. As a matter of fact, the lower Court in Paragraph 4 of the impugned order, records that the Plaintiff himself admitted that there was settlement talks and that Plaintiffs and Defendants are closely related to each other. There is no reason to doubt the correctness of that factual position. If it is so, the explanation offered by the Defendants of not filing written statement and not pursuing the matter in right earnest, will have to be accepted as sufficient and exceptional cause. 10. The third and the last argument canvassed before this Court is that the Application is filed only by Defendant Nos.2 to 7. No application has been filed for and on behalf of Defendant No.1. The Defendant No.1 has allowed the order of no written statement to become final. Suffice it to observe that- that issue does not arise for : 7 : consideration in the Application which has been filed by the Respondents. As and when such issue is raised before the Trial Court, the same be considered on its own merits. : 8 : 11. As no other contention has been raised, the Petition is devoid of merits. The same is dismissed. 12. As the Suit is for relief of partition and is pending since 1995, the Trial Court may be well advised to dispose of the same expeditiously, preferably by end of 2009. A.M.KHANWILKAR, J.