1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3041 OF 2008 WRIT PETITION NO. 3041 OF 2008 WRIT PETITION NO. 3041 OF 2008 Jyotsna Vernekar ... Petitioner Vs. Arun Anant Akkalkotakar ... Respondent Balasaheb Deshmukh, Advocate,for the petitioner. Mr. J.J.Thakkar, Advocate, for the respondent. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 24th November, 2008. DATE: 24th November, 2008. DATE: 24th November, 2008. P.C P.C P.C 1. The respondent is the original plaintiff and he has filed R.A.D. Suit No.1899/94 against the defendant-petitioner seeking declaration that the plaintiff is the tenant in respect of the suit premises. Suit summons were served on the defendant and as he did not appear on the date fixed in the suit summons, on the same day i.e. 16.8.1995, the trial court passed an order to proceed ex-parte against the defendant. It appears that on 22.9.1995, the defendant appeared and filed a reply to the Interim Notice in respect of interim relief. In the reply, he had challenged the 2 jurisdiction of the Court in view of the provisions of Section 9A of the C.P.C. Admittedly, on that basis, the Court had also framed an issue in respect of jurisdiction. It appears that the matter was pending for long time and on 17.11.2007, the defendant filed an application registered as Interim Notice No.2076/07 seeking condonatin of delay and permission to file written statement. He contended that in view of the change in the law, the question of jurisdiction is required to be decided along with other issues on merits. According to him, earlier he had not filed written statement as the issue about jurisdiction was not decided. 2. The application was opposed. The trial Court by its order dated 28.11.2007 rejected the application observing that the defendant had suppressed the fact from the Court that the ex-parte order was already passed against him. Against dismissal of the said application, the defendant has come to this Court in the present petition. 3. On perusal of the record, it is clear that even though on 16.8.1995, which was the date fixed for appearance in the suit summons, the defendant had not appeared and, therefore, on the same day, an order was 3 passed to proceed ex-parte. However, inspite of that order, on 22.9.1995, the defendant had actually appeared and filed a reply to the Interim Notice and on that basis, the issue of jurisdiction was raised. Inspite of that, the matter was pending for about 12 years. According to the defendant, it has become necessary to hear the question of jurisdiction also along with the other issues and, therefore, the written statement which was not filed by him earlier was required to be filed. Taking into consideration these circumstances and the fact that the parties are contesting the matter for 12 years on the question of jurisdiction, the trial Court should have allowed the application to file written statement which was not so far filed. The trial Court, while rejecting the application, observed that the order to proceed exparte against the defendant was passed even before objection under Section 9A was taken. It was also observed that inspite of service, the defendant had failed to appear and the order of exparte was passed on 16.8.1995 and This fact was suppressed by the defendant from the Court. Even if the defendant had not specifically made an application to set aside the exparte order, he had filed reply to the Interim Notice, raised objection to the jurisdiction and the plaintiff or his Counsel had never pointed out to the Court that an order to proceed exparte was already passed and 4 therefore the defendant could not file a reply nor participate in the matter. In fact, the plaintiff or his Counsel should have brought this fact to the notice of the Court. Instead of that, the trial Court rejected the application seeking leave to file written statement on the ground that the defendant had suppressed this fact. In fact, the order to proceed exparte was a matter of record before the Court and, therefore, it could not be said that there was any suppression of material by the defendant. 4. Taking into consideration all the circumstances, I find that the trial Court should have allowed the application and should have permitted the defendant to file written statement in view of the facts of the peculiar case. 5. For the aforesaid reasons, the Petition is hereby allowed. The impugned order is set aside. The trial Court is hereby directed to take the written statement, filed by the defendant along with the interim notice, on record and to proceed with the matter as per law. 5 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)