IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5380 OF 2007 WRIT PETITION NO. 5380 OF 2007 WRIT PETITION NO. 5380 OF 2007 Mr.Manohar Anant Joshi since deceased through his heirs and legal representatives a. Smt.Manda Manohar Joshi (widow) & Ors. ...Petitioners (Heirs of Original Defendant No.1) V/s. Kishor Ramchandra Bendre & Ors. ...Respondents (Nos.1 to 3-Orig.Plffs 1, 2 and deft.4 respectively. Nos.4 and 5 Orig.Defts 2 and 3 respectively) CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : FEBRUARY 4, 2008 DATED : FEBRUARY 4, 2008 DATED : FEBRUARY 4, 2008 P.C. :- P.C. :- P.C. :- 1. Heard learned Counsel for the petitioner and the learned Counsel for the respondent. 2. The petitioner takes exception to the order passed by the Civil Judge, Junior Division, Ratnagiri, below Exhibits 79 and 81 of RCS No.133/2003. The petitioner is the wife of original defendant no.1. After the original defendant no.1 died, she alongwith her children was brought on record. Defendant no.1 had - 2 - already filed written statement before he died. After the petitioners were brought on record, she did not file any praecipe adopting the written statement filed by defendant no.1 and a result on 28th November, 2005, an order was passed by the trial Court stating that the petitioner herein could not be permitted to file a written statement. Thereafter, the petitioner filed her affidavit of evidence on behalf of herself and on behalf of defendant nos.2 and 3 as the Power of Attorney. The respondent no.1 who is the original plaintiff filed an application at Exhibit 79 praying that the said affidavit of evidence may not be considered in evidence since the petitioner being the Power of Attorney holder could not give evidence or on behalf of defendant nos.2 and 3. It was further urged that the order of "No WS" was passed against the petitioner, therefore, she was not entitled to file her affidavit of evidence. After this application was filed by the respondent, the petitioner filed an application at Exhibit 81 seeking permission to adopt written statement which was already on record and which was filed by her late husband. Both the applications were heard by the trial Court and the - 3 - application of the respondent-original plaintiff was allowed and the affidavit of evidence of the Power of Attorney of the defendants was ordered to struck off from the evidence. The application of the petitioner was rejected. Being aggrieved by the aforesaid two orders, the petitioner has filed the above petition. 3. The learned Counsel appearing on behalf of the petitioner candidly admitted that there was delay in filing the application for adopting the written statement which was already on record. She, however, submitted that in the interest justice, the trial Court ought to have accepted the pursis which was filed by her. She submitted that so far as affidavit of evidence is concerned, she was ready to make a statement that the evidence was only on behalf of the petitioner herself and the words "for and on behalf of defendant nos.2 and 3 as Power of Attorney holder" may be deleted from the affidavit of evidence. 4. The learned Counsel appearing on behalf of the respondent vehemently urged that there was gross delay - 4 - in filing a praecipe for adopting the written statement which was already on record. He invited my attention to the chronology of case in order to establish that no justification or cause was shown by the petitioner herein for the delay caused in filing the application. He further submitted that obviously, the said application Exhibit 81 was filed an afterthought after he had filed an application at Exhibit 79. 5. In my view, the submission made by the learned Counsel for the respondent cannot be accepted. It is no doubt true that after the amendment of the CPC, an outer limit has been provided for filing a written statement. However, the Apex Court has now held that the said provision is not mandatory, with the result, in the event of any delay being caused in filing the written statement, such delay can be condoned by the court. In the present case, it is an admitted position that the defendant no.1 had already filed written statement in time. After his demise, the petitioner was brought on record as his legal heir. She did not, however, file a praecipe adopting the written statement. It is no doubt - 5 - true that after she was brought on record, it was obligatory on her part to either accept the written statement filed by the defendant or to file a fresh written statement. Since, no such praecipe was filed, the trial Court passed an order of "No WS". An application has been filed at a belated stage for setting aside the said order. In my view, the trial court ought to have considered since the written statement filed by the defendant was already on record, not filing a praecipe adopting the written statement, is a mere technical lapse on the part of the petitioner. No prejudice was caused to the plaintiff on account of delay, since already an interim order was passed by the trial Court in his favour which was in operation during the pendency of the suit. That being the position, the trial court ought to have considered it appropriate to allow the petitioner to file her praecipe. Interest of justice also would have been served if proper opportunity had been given to the petitioner to agitate her case on merits. The impugned order passed by the trial court at Exhibit 81 is liable to be set aside. So far as order at Exhibit 79 is concerned, the trial Court - 6 - was justified in coming to the conclusion that the Power of Attorney was not entitled to give evidence for and on behalf of principal. However, taking into consideration the submission made by the learned Counsel for the petitioner that she was ready to delete the words "for and on behalf of defendant nos.2 and 3 as Power of Attorney Holder" the said objection would not survive. The second objection also would not survive since the order of "No WS" has already been set aside by this Court, in the result, the order of the trial court is also set aside. The trial Court is directed to accept the praecipe of the petitioner of adopting the written statement filed by the defendant no.1 and affidavit of evidence of the petitioner herein also be taken on record and the words "for and on behalf of defendant nos.2 and 3 as Power of Attorney Holder" may be deleted. 6. In the result, petition is allowed. The respondent is entitled to costs for the delay caused by the petitioner in filing a praecipe at a belated stage. Costs are quantified at Rs.3000/-. - 7 - (V.M. Kanade, J.) (V.M. Kanade, J.) (V.M. Kanade, J.)