1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1176 OF 2010 Raghunath Khevaji Jambukar & ors ..Petitioners V/s. Pandurang Khevaji Jambukar & anr. ..Respondents Mr.M.B.Kale, Advocate, for the Petitioners Mr.U.B.Nighot, Advocate, for the Respondents CORAM : A.S.OKA, J. DATE : 22ND APRIL, 2010 P.C. . I have heard the submissions of the learned Counsel appearing for the parties. Notice for final disposal was issued on 18th February, 2010. 2. The Petitioners are the original Defendant Nos.1, 3 and 4. The 1st Respondent is the original Plaintiff. The 1st Respondent filed a suit for partition and separate possession. An Order was passed by the trial Court directing that the suit will proceed without Written Statement of the Petitioners. The 2 said Order was passed on 16th January, 2007. An application was made by the Petitioners at Exhibit 23 for setting aside the Order to proceed with the suit without Written Statement. Along with the said application, Written Statement was tendered by the Petitioners. By Order dated 1st January, 2010 the said application at Exhibit 23 has been rejected by the learned trial Judge which is the Order impugned in this Writ Petition under Article 227 of the Constitution of India. The learned trial Judge observed that the application was filed after lapse of three years and no case of existence of extra ordinary circumstances was brought on record by the Petitioners. 3. The learned Counsel appearing for the Petitioners submitted that considering the averments made in the application at Exhibit 23, extra ordinary circumstances were set out by the Petitioners. The learned Counsel appearing for the 1st Respondent supported the impugned Order. He submitted that there was a gross delay in making an application for setting aside the Order to proceed without Written Statement. He pointed out that the application was belatedly filed on 1st January, 2010. 3 4. In the application at Exhibit 23, the Petitioners have stated that though the Petitioners had engaged an Advocate, due to lack to knowledge of law, they could not give instructions to the Advocate. It is pointed out that on 20th July, 2009 an application was already made for setting aside the Order to proceed with the suit without Written Statement. The said application at Exhibit 20 was not pressed due to inadvertence. It was stated that the application was made only by the 2nd Defendant. It is stated that therefore, a fresh application at Exhibit 23 was filed by the present Petitioners. There is a reply filed by the 1st Respondent to the said application. It is pertinent to note that in the application at Exhibit 23, there is specific averment that along with the application at Exhibit 20, Written Statement of the Defendants was tendered. In the reply of the original Plaintiff which is endoresed on the said application, there is no specific denial of the fact that along with the application at Exhibit 20, Written Statement of the Defendants was tendered. In the impugned Order the learned Judge has referred to the application made at Exhibit 20 and the learned Judge has merely noted that the said application was not pressed by the Advocate for the 4 Defendants. However, the learned Judge has ignored the fact that along with the said application, Written Statement of the Defendants was tendered. Now, along with the application at Exhibit 23, a fresh Written Statement of the present Petitioners has been tendered. The ground pleaded in the application is of lack of legal knowledge. As per the direction issued by this Court on 18th February, 2010, a sum of Rs.5000/- has been deposited by the Petitioners in this Court towards the costs of this Petition payable to the 1st Respondent. Whether a case of existence of extra ordinary circumstances or extra ordinary reasons is made out or not depends on the facts and circumstances of each case. Considering the averments made in the application at Exhibit 23 and the fact that on 20th July, 2009 along with the application at Exhibit 20 Written Statement of all the Defendants was tendered, this was the case where the application made by the Petitioners ought to have been allowed. It is true that hearing of the suit for partition will be delayed. Therefore, the Petitioners will have to pay heavy costs to the 1st Respondent. A sum of Rs.5000/- has already been deposited. However, a further amount of Rs. 2,500/- will have to be deposited by the Petitioners towards the 5 costs. 5. Hence, I proceed to pass the following Order. (i) The impugned Order dated 11th January, 2010 is quashed and set aside and application at Exhibit 23 is allowed subject to Petitioners paying total costs of Rs.7,500/- to 1st Respondent. (ii) Time of eight weeks is granted to deposit the balance amount of Rs.2,500/- which will be deposited with the trial Court. (iii) The 1st Respondent will be entitled to withdraw a sum of Rs.5000/- deposited in this Court. (iv) Hearing of the suit is expedited and the learned trial Judge shall make an endeavour to decide the suit before the end of the year 2010. (v) Writ Petition is allowed in above terms. (A.S.OKA, J.)