1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8153 OF 2009 Bharat Kevalchand Jain .. Petitioner versus Rameshchandra Kanaiyalal Mehta .. Respondent Mr.Venkatkrishna Kunduru i/by M/s.Kunduru & Kunduru for the petitioner. Mr.M.P.Vashi i/by M/s.M.P.Vashi & Associates for the respondent. CORAM : A.S.OKA, J. DATE : 24th September 2009. P.C.: . Considering the narrow controversy involved in the writ petition, the same is taken up for final disposal at admission stage. The petitioner is the defendant and the respondent is the plaintiff. The writ of summons was served on 17th December 2008. There was a delay in filing the written statement. Therefore, an application was made by the petitioner in June 2009 for seeking leave to file the written statement. In the application it was contended that the petitioner could not attend the Court on 18th February 2009, 4th March 2009 and 12th March 2009 due to ailment. It is contended that the advocate appointed by the petitioner was not available till 20th March 2009 on account of his own marriage. It is stated that on 20th March 2009 the petitioner met his advocate and instructions were given to draft the written statement. The written statement was affirmed on 24th March 2009 and a copy of written statement was served to the advocate for the respondent on 30th March 2009 which he accepted subject to orders of the Court. By the impugned order, the trial Court has rejected the said application by 2 pointing out that on 15th April 2009 the petitioner was not present when the suit was fixed before the Court. 2. After having heard the learned counsel appearing for the parties, I find that this was a case where the trial Court ought to have exercised the discretion by accepting the written statement. There is material on record to show that written statement was affirmed on 24th March 2009 and a copy thereof was served to the advocate for plaintiff on 30th March 2009. The reasons why the written statement could not be drafted till 24th March 2009 have been set out in the application. It is true that the written statement which was ready on 24th March 2009 could have been filed earlier and the petitioner ought not have waited till 11th June 2009. 3. The fact remains that the written statement was affirmed and was kept ready on 24th March 2009. This fact is borne out from the fact that a copy thereof was served to the advocate for respondent on 30th March 2009. This shows that there was no negligence on the part of the petitioner. Hence, the petition must succeed. 4. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 2nd July 2009 is quashed and set aside. (b) Application at Exhibit 14 made by the petitioner is allowed. (A.S.OKA,J)