KBP WP6363-08.sxw : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6363 OF 2008 Mrs.Savitri Surendra Dhotre & ors. ..Petitioners V/s. Mr.Harikumar Radheshyam Dubey and ors. ..Respondents ..... Mr.Rajesh More, for petitioners. Mr.A.M.Pungliya, for respondents. ..... CORAM : A.S.OKA, J. DATE : 22 nd JULY, 2009. P.C. : 1] Heard learned counsel for the petitioners and learned counsel for respondents. Considering the controversy involved in the petition, the same is forthwith taken up for final disposal. 2] The petitioners are defendants in the suit filed by respondents. Suit summons were served to the petitioners. The petitioners did not file written statement within stipulated period of ninety days and on 17 th March, 2008 the trial court passed an order directing that the suit will proceed without written statement of the present petitioners. On 11 th April, 2008 an application was made by the petitioners for setting aside the aforesaid order and for seeking KBP WP6363-08.sxw : 2 : leave to file the written statement. A Written statement was tendered along with the said application. By the impugned order dated 10 th July, 2008 the said application has been rejected. 2] The learned Counsel for the petitioners stated that the delay was only of 26 days. He invited my attention to the averments made in his application and submitted that a case was made out for setting aside the order of proceeding the suit without written statement. Learned Counsel for respondent pointed out that there are no extraordinary circumstances brought on record warranting indulgence being shown to the petitioners. He pointed out that the only reason assigned in the application was that the petitioners could not get certain documents from government bodies. In this regard, he pointed out that the petitioners are not relying upon any such documents in the written statement tendered along with the application. He, therefore, submitted that no interference was called for. 3] I have carefully considered the submissions. The learned trial Judge has noted that the delay in filing written statement was only of 26 days. The petitioners have stated in the said application that some documents were required to procured from Government bodies. Merely because petitioners have not relied upon any such documents in the written statement, one cannot come to the conclusion that the petitioners were not entitled to study such documents before drafting written statement. Considering averments made in the application and considering that the delay was only of 26 days, the application filed by the petitioners ought to have been allowed. The prejudice, if any, caused to the respondent could have been compensated by imposing costs. The amount of costs is quantified at Rs.5,000/-. Hence, I pass the following order: KBP WP6363-08.sxw : 3 : (i) The impugned order dated 10 th July, 2008 is quashed and set aside. (ii) The application made by the petitioners at exh.12 in Civil Suit No.562 of 2007 is allowed, subject to payment of costs by petitioners of Rs.5,000/- (Rupees five thousand) within a period of six weeks from today. The amount to be deposited with trial court. Payment of costs will be condition president. ( A.S.OKA, J. )