1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.719 OF 2010 Lekhraj s/o Bherumal Tanwani, age: 79 years, Occ: Nil, R/o Gulmandi, Aurangabad. Petitioner Versus Avatarsingh s/o Indersingh Sodhi, age: 53 years, Occ: Business, R/o Opp. To National Institute of Fashion Designing, Osmanpura, Aurangabad. Respondent Mr.S.S.Panale, advocate for the petitioner. Mrs.S.D.Tambat (Dhumal), advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 17th March, 2010. ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. Rule, made returnable forthwith and heard finally by consent of the parties. 2 The order passed by trial Judge on 04.11.2009 rejecting application presented by petitioner – original defendant for setting aside order of `no written statement’ passed earlier and rejecting request as regards acceptance of written statement of defendant, is subject matter of challenge in this petition. 3 Respondent – original plaintiff instituted suit, being Regular Civil 2 Suit No.202/2008 claiming decree of mandatory injunction against defendant. In the pending suit, suit summons was served on the defendant and defendant has caused his appearance on 02.08.2008. Defendant thereafter presented an application on 24.11.2008 requesting the Court to reject plaint in exercise of powers under Order VII Rule 11 of the Code of Civil Procedure. After considering rival contentions, trial Court ultimately rejected the contention raised by defendant vide order dated 30.04.2009. In the mean time, trial Court passed an order on 12.03.2009 endorsing that written statement has not been presented by defendant and matter shall proceed without written statement. Defendant, after dismissal of application presented by him under Order VII Rule 11 of the Code of Civil Procedure, presented another application to the Court on 31.07.2009 requesting to set aside earlier order and to accept written statement sought to be presented along with the application. However, considering rival contentions raised by respective parties, trial Court rejected the application. 4 I have heard arguments advanced by learned Counsel for respective parties and perused order passed by trial Court on 04.11.2009. I am of the opinion that reasons given for failure of the defendant to present written statement within stipulated period are proper and ought to have been accepted by the trial Court. It is to be noted that application was presented by the petitioner-defendant under Order VII Rule 11 of the Code of Civil Procedure and said application ultimately came to be rejected. Defendant has sought leave to present written statement within reasonable time after rejection of his earlier application. The reasons given for failure of the defendant to present written statement within time are proper and justifiable. In order to meet ends of justice, therefore, the trial Court ought to have permitted the defendant to place on record written statement. No 3 doubt, there appears to be some delay in presenting written statement, as a result of which, suit remained pending. Inconvenience caused to the plaintiff can be compensated by directing the defendant to pay costs. 5 In view of the reasons recorded above, Petition stands allowed. Order passed by 10 th Joint Civil Judge, Junior Division, Aurangabad, below Exhibit-16 in Regular Civil Suit No.202/2008 dated 04.11.2009 is quashed and set aside. The trial Court is directed to accept written statement sought to be presented by petitioner – original defendant and to proceed to decide the controversy between parties on its own merits. Petitioner-defendant shall deposit amount of cost amounting to Rs.5000/- (Rs.Five thousand) in trial Court within a period of four weeks from today. On deposit of amount of cost by petitioner – defendant, Respondent – original plaintiff is at liberty to withdraw same. 6 Rule is accordingly made absolute. (R.M.BORDE) JUDGE ******* adb/wp71910