1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8712 OF 2009 Pandurang s/o. Girajappa Kaspate Age 53 years, Occ. Agri, R/o. Vithalwadi, Tq. and Dist. Osmanabad. .. petitioners Versus 1] Trevenibai w/o. Changdeo Landge (Dhanger) Age 61 years, Occ. Household & Agri, R/o. Vithalwadi, Tq. & Dist, Osmanabad. .. Respondent. --- Mr. S.T.Ghute, Advocate for petitioner. Mr. Eknath Savant, Advocate for the respondent. CORAM : R.M. BORDE, J. DATE : 6TH MAY, 2010. 2 ORAL JUDGMENT - 1] Heard. Rule. By consent of parties, petition taken up for final hearing. 2] An application tendered by the petitioner/original defendant No.2 requesting the trial court to set aside the “No W.S. Order” passed earlier has been turned down by the trial court, in view of the order passed on 8th December, 2009, and the said order passed below Exhibit 47 is subjected to challenge in this petition. The respondent No.1/original plaintiff instituted a suit, bearing R.C.S. No. 107/2008 claiming a decree for declaration, ownership and for perpetual injunction restraining the defendants from obstructing the possession of the agricultural property belonging to the respondent No.1/plaintiff. 3] After presentation of the suit, summonses were issued to the defendants and they were duly served on 21/4/2008. The defendants caused their appearance before the court on 3/5/2008. However, they failed to submit the written statement. The trial court was, therefore, constrained to pass an order of “No W.S.” on 18/9/2008. In the absence of the written statement of the defendants, the suit was proceeded further. On 8/12/2009, an application came to be presented by the defendant/petitioner requesting the court to set aside the “No W.S.” order passed on 18/8/2008 and to accept the written statement which was presented alongwith the application. The trial court, however, found that the reason stated in the application explaining 3 delay in presentation of the written statement is not convincing and as such, the application tendered by the defendants came to be rejected. 4] I have perused the application as well as the impugned order passed by the trial court. In the application tendered by the defendants, it is contended that the defendants needed some time to collect the necessary information as well as to secure documents on which they intended to place reliance. It is further contended that the lapse committed by them is not intentional and not with a view to prolong the litigation. It is contended that the dispute involved in the matter is in respect of right to immovable property and as such, the defendants need to be extended an opportunity to raise their contentions before the trial court. 5] Counsel appearing for the respondent has vehemently opposed the request made by the petitioner/defendant contending that the reason given by the defendants for delay in filing written statement is not convincing. It is further contended that because of the laxity on the part of the defendants, the litigation is dragged and the respondent No.1/original plaintiff is kept away from the fruits of the litigation. 6] Considering the relevant circumstances, I am of the view that the petitioner/original defendant need to be extended an opportunity to place their contentions before the trial court. Considering the nature of the litigation in which right to immovable property is involved, it is always desirable that the dispute is decided on its own merit. The contention raised 4 by the defendants that the lapse on their part is not intentional is also required to be accepted. It is also to be borne in mind that the parties are hailing from rural area and are not conversant with the procedural intricacies. In this view of the matter, I am of the view that the present petition needs to be allowed. However, the inconvenience caused to the respondent/plaintiff needs to be compensated by saddling cost on the petitioner/defendant. 7] For the reasons recorded above, the order passed by the Jt. Civil Judge (S.D.),Osmanabad, dated 8th September, 2009, below Exhibit 47, in R.C.S.No. 107/2008 is quashed and set aside. The application tendered by the petitioner/original defendant shall be deemed to have been allowed. The defendants, however, shall deposit cost of Rs.5000/- before the trial court within six weeks from today. On deposit of costs as directed, the respondent/original plaintiff shall be entitled to withdraw the same. The trial court is further directed decide the pending suit expeditiously. Rule made absolute accordingly. [R.M. BORDE,J.] Grt/-