1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6982 OF 2006 Tukaram Ganpat Bhor ..Petitioner V/s. Bhagwat Sakharam Bule & ors ..Respondents Mr.U.B.Nighot for the petitioner Mr.S.A.Sawant for the respondent Nos.1 & 2 CORAM : S.C.DHARMADHIKARI, J. DATE : 15TH JUNE, 2007 P.C. 1. Heard Mr.U.B.Nighot for the petitioner who is the original defendant No.1 and Mr.S.A.Sawant appearing for the original plaintiffs i.e.respondent Nos.1 to 3. The presence of respondent Nos.4 to 6 is not necessary. 2. Respondent Nos.1 to 3 filed Regular Civil Suit No.124 of 2004 against the petitioners and respondent Nos.4 to 6 for a declaration that they have 1/4th share in suit well and for permanent injunction to restrain the petitioners from 2 obstructing the taking of the water from the suit well. 2. The writ summons in this case was served on 7th October, 2004. Upon service of writ summons, it was for the defendants to file Written Statement within the period specified by the amended C.P.C. That Written Statement was not filed but an application was made to condone the delay is undisputed. The impugned order of No W.S. was made by the trial Court on 16th August, 2005. In the application to set aside this order and take the W.S.on file, the reason assigned is that the advocate for the petitioner, Mr.G.A.Kulkarni was ill for some time and that is how the Written Statement could not be filed. 3. The learned Judge rejected the application preferred by the petitioner on the ground that it is filed on 5th January, 2006 and the duration for which the advocate was ill is not specified nor his any Certificate/evidence of the illness filed. Thus, no satisfactory reasons are assigned is the 3 conclusion and the application was rejected. 4. This order has been challenged before me. 5. Mr.U.B.Nighot appearing for the petitioner submits that a very hypertechnical approach is adopted by the learned Judge in as much as not denying that the advocate was ill asking the petitioner to file Certificate of illness is unwarranted and unnecessary. The provisions are held to be directory in nature and Court is not powerless from ensuring that parties to go to trial on merits and are not deprived of such an opportunity. It was not fair and proper on the part of the Court below to reject the request by assigning such reasons. 6. Mr.S.A.Sawant on the other hand, has supported the impugned order and has relied in addition on several Judgments of the Supreme Court & this Court. He submits that this Court should not interfere in the discretion exercised by the Court below. The same is not at all arbitrary or 4 capricious in nature. The power which the Court possesses to ensure expeditious disposal of the cases should not be interfered with by this Court as a matter of course. 7. In the peculiar facts of this case, where the Court is not denying that the advocate was ill but called upon the party to submit proof of the same, it can safely be held that the discretion is improperly exercised. The petitioner deserves last opportunity in the matter. Mr.U.B.Nighot, learned advocate appearing for the petitioners states that Written Statement is ready and would be filed within a period of ten days from today. He is willing to pay cost quantified by this Court. 8. In these circumstances and considering peculiar facts of this case Writ Petition is allowed by quashing and setting aside the impugned order. The petitioner shall now file his Written Statement as undertaken before me within ten days from today. Similarly, filing of the Written Statement shall be accompanied by the proof that 5 the petitioner has paid cost quantified Rs.1,500/- to the respondent Nos.1 & 2. Upon compliance, the Written Statement shall be taken on record and thereafter, suit to proceed in accordance with law. All concerned to act on authenticated copy of this order. (S.C.DHARMADHIKARI, J.)