1 wp 6038.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6038 OF 2010 Balu S/o Jalindar Pawar, Age : 46 Years, Occu. : Agril., R/o Mulegaon Tanda, Tq. South Solapur, Dist. Solapur. .. .. Petitioner Versus 1. Shivaji S/o Jalindar Pawar, Age : 35 Years, Occu. : Agril., R/o Mulegaon Tanda, Tq. Sough Solapur, Dist. Solapur. 2. Laxman S/o Jalindar Pawar, Age : 42 Years, Occu. : Agril., R/o Mulegaon Tanda, Tq. Sough Solapur, Dist. Solapur. 3. Jalindar Genu Pawar, Age : 70 Years, Occu. : Agril., R/o Mulegaon Tanda, Tq. Sough Solapur, Dist. Solapur. 4. Sonabai Jalindar Pawar, Age : 66 Years, Occu. : Agril., R/o Mulegaon Tanda, Tq. Sough Solapur, Dist. Solapur. 2 wp 6038.10 5. Branch Managar, Boramani Pearl Green Forest Ltd., IInd Floor, Vaishali Building, Com. Centre, Pachima Vihar, New Delhi, Branch at Boramani, Tq. South Solapur, Dist. Solapur. 6. Gurindar Sing S/o Harbhajan Sing, Age : 43 Years, Occu. : Agril., R/o Bhupendar Nagar, Patila, (Chandigir), Punjab. .. .. Respondents Shri K. S. Bhore, Advocate for the Petitioner. The Respondent Nos. 1 to 4 served – absent. The Respondent No. 5 deleted. CORAM : S. V. GANGAPURWALA, J. DATE : 23RD AUGUST, 2011. ORAL JUDGMENT : . Shri Bhore, the learned counsel for the petitioner seeks leave to delete the respondent No. 5. Leave to delete the respondent No. 5 is granted at the risk of the petitioner. 2. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing. 3. The present petitioner is the original defendant No. 1. The present respondent Nos. 1 to 4 have filed suit for partition and 3 wp 6038.10 separate possession. The petitioner was served with the summons on or about 23.03.2009. Thereafter, the petitioner sought time to file written statement. On 23.07.2009 the petitioner had submitted an application along with the written statement praying that no written statement order passed earlier be set aside. Said application is rejected on 17.08.2009. Aggrieved thereby the present petition is filed. 4. Initially this Court had issued notice to respondents vide order dated 20 th July, 2010. The said notices were served, but none of the respondents appeared. Thereafter, this Court again vide order dated 01 st April, 2011 issued notice of final disposal to the respondents, inspite of the service of notices for final disposal, the respondents are absent. 5. Heard Shri Bhore, the learned counsel for the petitioner. The learned counsel submits that the suit is a substantive suit for partition and separate possession. There was not an inordinate delay in filing the written statement. The summons was served upon the petitioner on 23.03.2009 and thereafter on 23 rd July, 2009, the petitioner had filed written statement along with application for setting aside no written statement order. The same should have been considered, but has been rejected on 4 wp 6038.10 technical grounds. 6. With the assistance of the learned counsel, I have gone through the order. It is fact that the petitioner has submitted written statement along with application for setting aside no written statement order. The learned Trial Judge while rejecting the application has taken a very hyper technical approach and only on the ground that application is not supported with affidavit the learned Trial Judge has rejected the same. Moreover, the petitioner has stated the reasons that he could not get the documents and that is why the written statement could not be filed earlier. Taking into account the above conspectus of the matter and the fact that the matter is a substantive suit for partition and separate possession and that the defendant should be given an opportunity to contest the same, I set aside the order impugned. 7. The Rule is made absolute in terms of prayer clause “B” and the application Exhibit 27 in R.C.S. No. 44/2009 is allowed. The written statement shall be read and recorded by the learned Trial Judge. No costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11