Writ petition 591/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 591/2010 1 Jagannath s/o Rambhau Chavan, Age : 50 years, Occu. Agril. 2 Ragunath s/o Rambhau Chavan, Age : 40 years, Ocu. Agril. 3 Navnath s/o Rambhau Chavan, Age : 35 years, Occu. Agril. R/o Kolwadi, Tq. & Dist. Beed. ...Petitioners. Versus 1 Asaram s/o Ginyandev Chavan, Age : 50 years, Occu. Agril., R/o Kolwadi, Tq. & Dist. Beed. 2 Sakharam s/o Ginyandev Chavan, Age : 45 years, Occu. Agril., R/o Kolwadi, Tq. Dist. Beed. 3 Laxmibai w/o Ginyandev Chavan, Age : 67 years, Occu. Nil, R/o Kolwadi, Tq. Dist. Beed. ...Respondents. Mr. G.K. Naik Thigle, Advocate for the petitioners. Mr. H.K. Mundhe, Advocate for respondent Nos.1 to 3. CORAM: A.V. NIRGUDE, JJ. DATED : 11th March, 2011. ORAL JUDGMENT (Per A.V. NIRGUDE, J.): 1. Rule. Rule returnable forthwith. By consent of parties, writ petition is taken for final hearing, and disposed of, as follows. 2 This writ petition is filed against the order passed by the Writ petition 591/2010 2 learned Civil Judge (Junior Division), Beed on Exhibit 25 dated 04/04/2009 in Regular Civil Suit No. 02/2009. The petitioners were defendants No. 3 and 4 in that suit. This was a suit for partition filed between the brothers. The summons of the suit were served on the petitioners on 15/01/2009. In view of Rule 1 of Order V of the Code of Civil Procedure, they were expected to file written statement within 30 days from the date of service of summons. But admittedly, they failed to do so. On 18/03/2009 they sought further time to file written statement saying that the documents relating to the case were still not available and they would file written statement on next date. The learned Civil Judge rejected the application, saying that the petitioners already had number of opportunities to file the written statement. As said above, this order was passed on 18/03/2009. Thereafter on 26/03/2009 the petitioners went to the Court with a written statement and sought leave of the Court to file the same. The learned judge by his impugned order dated 04/04/2009 rejected this application, again on the ground that the petitioners had had number of opportunities for filing written statement and yet failed. The question is whether the learned judge of the trial Court committed serious error in passing the impugned order. The answer is in affirmative. Rule 1 of Order V of the Code of Civil Procedure reads as under. (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant: Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiffs claim: Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file Writ petition 591/2010 3 the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 3 No doubt, this provision enjoins a defendant who filed his written statement within 30 days from the date of service of summons. However, the second proviso on the other hand gives ample discretion to the learned judge of the trial Court to allow filing of the written statement within 90 days even if a defendant fails to file the same within 30 days. It seems the leaned judge of the trial Court in this case refused to use his discretion even though the petitioners had made their request within 90 days from the date of service of the summons. I think, the learned judge took a rather pedantic approach, while using his discretion and therefore, has committed an error. This error is required to be corrected. However, the discretion now been shown in favour of the petitioners should come with tag of cost. The rule in the writ petition is made absolute, in terms of the following order. ORDER a) The impugned order stands set aside. b) On petitioners’ /defendants’ depositing Rs.1,000/- as cost to be paid to the plaintiffs /respondents in the lower Court on or before 11/04/2011. c) Written statement filed by petitioners shall be exhibited. [A.V. NIRGUDE, J.] ts k/2011/march11/wp591.10/ok