1 wp6191.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 6191 OF 2010 Arvind Annarao Birajdar, Age : 33 years, Occ : Business, R/o At Post Korali, Taluka Nilanga, District Latur. ..PETITIONER -VERSUS- 1. Vilas Vishwanath Patil, Age : 47 years, Occ : Business & Agril., R/o At Post Chinchkot, Taluka Omerga, Dist. Osmanabad. 2. Sau. Kasibai Annarao Birajdar, Age : 57 years, Occ : Household 3. Angat Annarao Birajdar, Age : 37 years, Occ : Agril., 4. Shivappa Annarao Birajdar, Age : 34 years, Occ : Business, 5. Babita Baswant Malshetty, Age : 32 years, Occ : Household, Nos. 2 to 5 R/o At Post Korali, Taluka Nilanga, Dist. Latur. 6. Mahadevi Siddheshwar Birajdar, Age : 47 years, Occ : Household, R/o Shivpuri Colony, Omerga, District Osmanabad. 7. Arun Siddheshwar Birajdar, Age : 25 years, Occ : Business, R/o as above. 8. Vikram Siddheshwar Birajdar, Age : 23 years, Occ : Education, R/o as above. 2 wp6191.10 9. Shruti Siddheshwar Birajdar, Age : 21 years, Occ : Education, R/o as above. ..RESPONDENTS ...... Shri Mukul Kulkarni, advocate for the petitioner Shri. Amit Mukhedkar, advocate for the respondent no.1. ...... CORAM : S.V. GANGAPURWALA, J. DATE : 5th September, 2011. ORAL JUDGMENT : 1. At the outset Shri. Mukul Kulkarni, the learned counsel for the petitioner seeks leave to delete the respondent nos. 5 to 9 being formal parties and not concerned with the present issue. The respondent nos. 5 to 9 are allowed to be deleted at the risk of the petitioner. 2. Shri. Mukul Kulkarni, the learned counsel for the petitioner also seeks leave to transpose the respondent nos. 2, 3 and 4 as the petitioners. Leave granted. Amendment to be carried out forthwith. 3. Rule. Rule made returnable forthwith. With consent of the parties, this Petition is taken up for final hearing. 3 wp6191.10 4. The present respondent no.1 had filed the suit seeking re-conveyance of the suit properties. The plaintiff led his examination in chief on 24.11.2009. The suit proceeded without written statement as against the present petitioner vide order dated 30th January, 2008. Thereafter, on 11th January, 2010, the petitioner moved an application for setting aside the `No W.S.' order along with the written statement. The said application is rejected. Aggrieved thereby, the present Petition is filed. 5. Shri. Kulkarni, the learned counsel for the petitioner submits that at the stage of arguments, the present application came to be filed. The suit is substantive suit for re-conveyance of the suit properties. The present petitioner is the original defendant no.4, who was doing his Ph.D. and because of the same, he could not remain present and give necessary instructions. The learned counsel contends that an opportunity deserves to be given to the petitioner to contest the suit on merits. 6. Mr. Mukhedkar, the learned counsel for the original plaintiff strenuously opposes the Petition and submits that no sufficient cause is stated in the application for allowing the petitioner to file Written Statement after such an inordinate delay. The No W.S. order was passed on 30th January, 2008 and for one 4 wp6191.10 and half years, no written statement was filed. It was at the fag end, the present application was moved. The application is moved with sole intention to protract the matter. The learned counsel contends that as no sufficient reasons are stated, the discretion exercised by the trial Court is proper and same need not be interfered with. 7. The suit is substantive suit for re-conveyance of the suit properties. The plaintiff contends that he is in possession of the properties. Though the `No W.S.' Order was passed against the defendant nos. 1 to 4 on 30th January, 2008, it appears that for the first time, the examination in chief was led by affidavit on 24.11.2009 and thereafter on 11th January, 2010, the application was filed. This would show that non filing of written statement on the part of the petitioner did not delay the matter. The suit involves right of immovable property and it is in the fitness of things to get the said matter decided on merits. The petitioner has stated the reason that he was prosecuting his Ph.D. course and thats why could not remain present. 8. Taking into account above prospectus of the matter, I am inclined to allow the Writ Petition. The petitioner also deserves to be imposed some cost. 5 wp6191.10 9. In the result, the Writ Petition is allowed. The Rule is accordingly made absolute in terms of prayer clause `A', on condition that the petitioner shall pay cost of Rs. 3000/- to the plaintiff within a period of three weeks from today. [S.V. GANGAPURWALA] JUDGE ga s/wp6191.10