1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5183 OF 2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. S.N.Rodge, Advocate for Petitioner. Mr.S.J.Salunke, Advocate for Respondent no. 1. ........................... [ CORAM : K.K.TATED, J. ] DATE : 07/10/2009. PER COURT : 1. Heard learned counsel for petitioner and learned counsel for respondent no. 1. Though the respondent nos. 2 to 5 are served, no one appeared on their behalf when the matter was called out for hearing. 2 2. By this Petition under Articles 226 and 227 of the Constitution of India, petitioner/original defendant no. 5 challenges the Order dated 13/7/2009 passed by the learned Civil Judge (Sr.Division), Majalgaon below exh. 22 in Special Civil Suit No. 9 of 2009 rejecting petitioner’s application for setting aside ‘ No W.S. ’ order dated 11/6/2009 and not allowing petitioner to file Written Statement. 3. In the present case, the respondent no. 1/original plaintiff filed Special Civil Suit No. 9 of 2009 in the court of the Civil Judge (J.D.), Majalgaon for partition and possession of agricultural land and in the said Suit, summons was served on the petitioner on 11/2/2009 and thereafter he appeared and filed his appearance on 17/2/2009. The petitioner filed two applications on 13/3/2009 and 4/5/2009 for time to file Written Statement on the ground that some of the important documents are not available with him. Those applications were allowed by the trial Court on payment of cost of Rs. 50/- each. 4. Thereafter, the petitioner 3 filed one more application dated 13/7/2009 for recalling ‘ No W.S. ’ order dated 11/6/2009 and allowing him to file Written Statement. In the petition, the petitioner/original defendant no. 5 specifically stated in paragraph no. 6 that petitioner tendered Written Statement along with his application dated 13/7/2009. The said application dated 13/7/2009 is rejected by the trial Court on the ground that though twice time was extended for filing Written Statement on payment of costs, the petitioner failed to deposit the same. 5. The learned counsel appearing on behalf of respondent no. 1 vehemently opposed the request of the petitioner on the ground that petitioner failed to disclose any cogent reason for setting aside ‘ No W.S. ’ order dated 11/6/2009. After perusal of petitioner’s application dated 13/7/2009, it is clear that there was delay on the part of the petitioner to file Written Statement on the ground of collecting relevant information for filing Written Statement. 6. The Apex Court in the matter of Shaikh Salim Haji Abdul Khayumsab V/s Kumar and others 4 reported in 2006 (1) Bom. C.R. 57 held that in an adversarial system, no party should ordinarily be denied the the opportunity of participating in the process of justice dispensation. Paragraph 10 of this case reads as under : “ All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the C.P.C. Or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in 5 the ends of justice ”. 7. In any case, the petitioner along with his application dated 13/7/2009 tendered a copy of Written Statement before trial Court. This can be sufficient ground for allowing petitioner to file Written Statement by setting aside ‘ No W.S. ’ order dated 11/6/2009 in Special Civil Suit No. 9 of 2009. 8. Considering the facts and circumstances of the present case, Writ Petition is allowed in terms of prayer clause ‘ B ’ setting aside ‘ No W.S. ’ order dated 11/6/2009. Prayer clause ‘ B ’ is as under : “ To issue Writ of certiorari or any other appropriate writ or order or direction, the order dated 13/7/2009 passed by Jt. Civil Judge (S.D.), Majalgaon below Exh. 22 in Spl. Civil Suit No. 9 of 2009, may kindly be quashed and set aside ”. 9. The Written Statement filed by the petitioner in the trial Court along 6 with his application dated 13/7/2009 be taken on record subject to the payment of costs of Rs. 1,000/- (Rupees One Thousand only) to the respondent no. 1 within 4 weeks from today i.e. 4/11/2009. [ K.K.TATED ] JUDGE knp/WP5183.09S