1 WP No. 6575.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 6575 OF 2009 1. Jugankishor Bansilal Gindodiya, Age 68 years, Occu. Business, 2. Radheshyam Bansilal Gindodiya, Age 61 years, Occu. Business, 3. Sau. UmadeviJugalkishor Gindodiya, Age 65 years, Occu. Household, All R/o Jamnalal Bajaj road, Dhule, Tq. & Dist. Dhule ..PETITIONERS VERSUS 1. Smt. Jankabai W/o Narayan Jirekar, Age 78 years, Occu. Household, R/o Galli No. 4, House No. 2759, Dhule, Taluka & Dist. Dhule. 2. Sau. Godabai W/o Sambhaji Lade, since deceased through is legal heirs, 2-A Parshuram S/o Sambhaji Lade, Age 52 years, Occu. Labour, 2-B Arun S/o Sambhaji Lade, Age 50 years, Occu. Labour, 2-C Smt. Pratibha W/o Vasant Lade, Age 35 years, Occu. Household, 2-D Ku. Gaytri D/o Vasant Lade as per leave granted on 24-06-11 in C.A. No. 248/10 deleted. 2 WP No. 6575.09 2-E Ku. Sapna d/o Vasant Lade, Age 13 years, Occu. Education 2-F Ku. Bhavesh Vasant Lade, Age 10 years, Occu. Education, 2-G Sambhaji S/o Ramchandra Lade, Age 72 years, Occu. Nil, Resp. No. 2D to 2F since are minor through next friend mother Smt. Pratibha w/o Vasant Lade. All R/o Shivajinagar, Municipal Colony, Dhule Tq. & Dist. Dhule ..RESPONDENTS ... Mr. S.P. Brahme, Advocate for petitioners Mr. Mulkul Kulkarni, Advocate for respondent No. 1 Mr. Amol S. Sawant, Advocate for respondent Nos. 2-A to 2-G CORAM :- S.V. GANGAPURWALA JJ. DATE:- 18th July, 2011. ORAL JUDGMENT: Rule. Rule made returnable forthwith. With the consent of the parties, the matter is taken up for final hearing at the stage of admission. 3 WP No. 6575.09 2. The Present respondent No. 1 had filed a suit for partition and separate possession. The present petitioners filed an application for impleading them as parties. The said application came to be allowed. Thereafter, the present petitioners filed various applications seeking time to file Written statement. Initially, they filed application on the ground that the defendants were out of station and instructions could not be given. Thereafter,they sought the copies of documents from the plaintiff. 3. The present petitioners had sought documents vide application Exh. 51. The said application was rejected by the Trial Court on 24-07-2009. Vide order dated 11-08-2009 the Court also passed an order that suit to proceed without written statement against the defendant Nos. 2 to 4. Aggrieved thereby, present petitioners have assailed the said order before this Court. 4. Mr. Brahme learned counsel for the petitioners submits that it is the right of the 4 WP No. 6575.09 petitioners to get the documents filed by the plaintiff. Unless and until the documents are given the defendants would not be in a position to file Written statement. Admittedly, the petitioners were added subsequently as such, no question arises of the defendants receiving the copies of the plaint and documents along with summons. The learned counsel relied on the provisions of Rule 7 of Section 14 of the Civil Procedure Code and the Judgment of the learned Single Judge in a case of Alda Valezia Tereza Mergulhaoe Lobo V. Joaquim Jeronimo de Almeida & Ors, reported in 2006(4) Bom. C.R. 443. The learned counsel further contends that the moment the documents are received the petitioners would file written statement. The petitioners do not want to protract the proceedings, they are also interested in disposal of the matter. 5. Shri Kulkarni, learned counsel for the respondent No. 1 / Original plaintiff submits that in fact the petitioners are strangers. The conduct of the petitioner shows that they only want to protract the matter. Initially, on 5 WP No. 6575.09 06-03-2009 time was sought for filing written statement on the ground that the copy of the amended plaint is received on the last date and defendant has gone out of station and therefore written statement could not be filed. On 07-04-2009 also time was sought for filing written statement on the ground that on occasion of Mahaveer Jayanti the defendants have gone out of station. Thereafter, on 8-05-2009 time was sought on the ground that necessary instructions were not received by the lawyer. As such, it would be seen that time and again the matter was adjourned and subsequently for the first time the petitioners filed an application on 15-06-2009 seeking directions against the plaintiff to supply the documents. Even the documents were supplied to the petitioners but still false grounds have been raised by the petitioners. 6. Shri Sawant, learned counsel for the respondents adopts arguments of Shri Kulkarni learned counsel for the respondent No. 1. 7. No doubt initially the applications 6 WP No. 6575.09 were filed seeking adjournment on the various grounds such as non availability of the defendants, lack of necessary instructions and eventually for the first time on 15-06-2009 the petitioners filed an application that the plaintiff be directed to supply the documents. The contention as to whether the petitioners would be entitled for the documents or not need not be considered as the petitioner has already been supplied the documents by the original plaintiff. Shri Brahme the learned counsel for the petitioners acknowledges the receipt of the documents from the plaintiff through Shri Kulkarni, the learned counsel. In view of the same, whether earlier also the petitioners have received the said documents, need not be gone into. 8. Mr. Brahme learned counsel for the petitioners states that even the written statement is ready and the same could be filed before this Court also. 9. In view of the fact that the documents 7 WP No. 6575.09 have already been supplied, the order dated 24-07-2009 passed below Exh. 51 does not survive and becomes redundant. 10. As the written statement is ready and same can be filed by the petitioners immediately, I feel it appropriate to allow the petitioners to file written statement instead of going by technicalities. No doubt initially adjournments were sought by the defendants on various other grounds other than the ground for supply documents. The application seeking documents was not filed immediately and therefore the matter has been protracted for quite some time. As such while setting aside the order of no written statement dated 11-08-2009 passed below Exh. 47, it would be appropriate to mulct the petitioners with cost. In the result I pass following order. ORDER A] The impugned order dated 11-08-2009 below Exh. 47 is quashed and set aside on condition that the petitioners shall file written 8 WP No. 6575.09 statement within fifteen days from today before the Trial Court and pay cost of Rs. 10,000/- to the original plaintiff within fifteen days. B] The order dated 24-07-2009 below Exh. 51 become redundant as the petitioner accepts that the documents have been received by petitioners. C] Rule is accordingly made absolute in above terms. [S.V. GANGAPURWALA, J ] SDM*July11