1 WP 4971.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4971 OF 2011 Jawed Ahmad S/o Abdul Rahman Age : 54 Years, Occ. : Business, R/o : Pensionpura, Sadar Bazar, Jalna. .... PETITIONER V E R S U S 1. Fulchand S/o Ratansingh Thakur Age : 62 Years, Occ. Business, R/o : Padampura, Aurangabad. 2. Nandlal S/o Ratansingh Thakur Age : 70 Years, Occ. Service, R/o : H.No. 904, Cantonment, Aurangabad. 3. Jagalal S/o Ratansingh Thakur Age : 50 Years, Occ. Business, R/o : Padampura, Aurangabad. 4. Kushalchand S/o Ratansingh Thakur Age : 50 Years, Occ. Business, R/o : N-4, Near Police Station, Aurangabad. 5. Shamal S/o Ratansingh Thakur Age : 52 Years, Occ. Service, R/o : C/o : India Security Press, Nashik Road, Nashik. 6. Jamnabai W/o Tekchand Thakur 2 WP 4971.2011 - [ J ] Age : 60 Years, Occ. Household, R/o : Cantonment, Aurangabad. 7. Gabbar S/o Tekchand Thakur Age : 45 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 8. Santosh S/o Tekchand Thakur Age : 42 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 9. Ganesh S/o Tekchand Thakur Age : 40 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 10. Asha D/o Tekchand Thakur Age : 38 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 11. Gajra D/o Tekchand Thakur Age : 35 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 12. Pinki D/o Tekchand Thakur Age : 32 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 13. Sapna D/o Tekchand Thakur Age : 29 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 14. Soni D/o Tekchand Thakur Age : 27 Years, Occ. Agril. R/o : Cantonment, Aurangabad. 15. Gayatri D/o Tekchand Thakur Age : 25 Years, Occ. Agril. 3 WP 4971.2011 - [ J ] R/o : Cantonment, Aurangabad. .... RESPONDENTS Mr. V.M. Kagne, Advocate for the Petitioner. Mr. M.K.Deshpande, Advocate for Resp. No. 1. CORAM :S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 29/08/2011 ORAL JUDGMENT : 1. At the out set, Mr. Kagne, the learned counsel for the petitioner seeks leave to delete respondent nos. 2 to 15 as they are co-defendants. Leave to delete respondent nos. 2 to 15 granted at the risk of the petitioner. 2. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 3. Heard the learned counsel for the respective parties. 4. The present petitioner is the original defendant no. 15. The present respondent no. 1/original plaintiff had filed Suit for partition and separate possession. The defendant no. 15 had filed 4 WP 4971.2011 - [ J ] an application for setting aside ‘ No W.S. ’ order and for accepting the Written Statement, which is filed with the application. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 5. Mr. Kagne, the learned counsel for the petitioner submits that the amended plaint was filed in June, 2009 and thereafter the petitioner had filed an application for setting aside the exparte order on 07/04/2011. As such, it can not be said that there was inordinate delay. The Suit is substantive Suit. The petitioner deserves to be given an opportunity to contest the Suit. 6. Mr. M.K.Deshpande, the learned counsel for the respondent submits that the petitioner has made out false and vexatious facts in order to harass the plaintiff. The defendant only with a view to protract the matter, has not filed Written Statement earlier nor had appeared in the Suit. As the discretion is properly exercised, the Writ Petition can not be entertained. 7. With the assistance of the learned counsel for the parties, I have gone through the impugned order. 5 WP 4971.2011 - [ J ] 8. The Suit is the substantive Suit for partition. The present petitioner along with an application has filed Written Statement on record. When the Written Statement was already filed on record and the plaintiff had only filed Examination-in- Chief, his further evidence is yet to be recorded, there was no impediment for the trial Court in allowing the said application taking into account the nature of the Suit. 9. In the result, the Writ Petition is allowed. The impugned order is quashed and set aside and the application Exh. 75 is allowed on condition that the petitioner pays costs of Rs. 2,000/- ( Rupees Two Thousand only ) to the respondent within the period of four ( 4 ) weeks from today i.e. 26/09/2011. The trial Court shall endeavour to dispose of the Suit expeditiously. 10. Rule is accordingly made absolute in above terms. [ S.V. GANGAPURWALA, J.] KNP/WP 4971.2011 - [ J ]