SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8902 OF 2004 Sadashiv Dhondiba Adsule & Ors. ...Petitioners Versus Miss.Sarita Vishnu Kasalkar & Ors. ...Respondents ...... Mr.S.L.Kapse for Petitioners. Mr.M.R.Suryawanshi for Respondents 1, 2 & 4 to 7. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 2, 2008. SEPTEMBER 2, 2008. SEPTEMBER 2, 2008. P.C. P.C. P.C. 1. None appears for the Respondents 3 and 8 though served. The notice issued by this Court clearly indicated that the matter will proceed for final disposal at the notice stage. In the circumstances, hearing of this Petition is proceeded forthwith. 2. After hearing Counsel for the Petitioners and Respondents 1, 2 and 4 to 7, I have no hesitation in taking the view that the order which : 2 : is impugned in this Petition under Article 227 of the Constitution of India will have to be set-aside in the interest of justice. That order was passed below Exhibit 43 in Regular Civil Suit No.40/2002. The said Application was filed by the Petitioners/Defendnat Nos.7 to 11 and 13 to 15 praying for condoning delay in filing of written statement and to take the written statement on record. 3. The Court below has recorded two reasons for rejecting the said application. Firstly that the Application was not filed within ninety days. There is no difficulty in upholding the finding of fact so recorded. Nevertheless, it cannot be overlooked that the present Suit is filed on 23rd April 2002 and the amendment to the Code of Civil Procedure came into force on 1st July 2002. In any case, the question that requires to be considered is: whether sufficient cause has been made out? The Petitioners have stated reasons in the application which prevented the Petitioners to file the written statement within reasonable time. The Court below, however, has answered the said plea on : 3 : the finding that no evidence has been produced by the Petitioners to substantiate their stand. 4. In my opinion, in the peculiar facts of the present case, the Petitioners will have to be given one opportunity to produce relevant evidence to justify the inaction of not filing the written statement within the statutory time. This is because the Petitioners have pointed out that in respect of the self same suit land, the Petitioners have already succeeded in getting decree against the Respondent No.1. Xerox copy of the certified copy of the said decree dated 30th June 2007 in Regular Civil Suit No.21/2005 was produced before this Court. However, Counsel for the Respondent No.1/Plaintiff has rightly pointed out that this document was not brought to the notice of the lower Court. 5. In the circumstances as aforesaid, by way of one indulgence, appropriate course is to set-aside the impugned Judgment and order and instead, the Application below Exhibit 43 in Regular Civil Suit No.40/2002 shall stand resorted : 4 : on the file of the Trial Court for being decided on its own merits afresh in accordance with law keeping in mind the observations made in the earlier part of this decision and in particular, the subsequent fact of decree having been passed against the Plaintiff in respect of the suit land and the impact of the said decree on the rights and contentions of the parties in the pending suit. 6. Parties shall appear before the Trial Court on 13th October 2008 when the Trial Court shall proceed to decide the application Exhibit 43 on the said date or some other date convenient to the Court while ensuring that the same is finally disposed of expeditiously. 7. Trial Court shall permit the parties to file further evidence and/or documents in support of their respective stand in the context of Application Exhibit 43. 8. Petition disposed of on the above terms. : 5 : A.M.KHANWILKAR, J.