1 W.P.No.880/11 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.880 OF 2011. Govindbhau Nagari Patsanstha Ltd., Mahatma Gandhi Chowk, Dondaicha, Taluka Sindkheda, Dist.Dhule, through its Manager, Hiralal Kautik Chaudhari. ... Petitioner. Versus Ratilal Champalal Jain, Age 55 years, Occ.Service, R/o Sonar Galli, Dondaicha, Taluka Sindkheda, Dist. Dhule. ... Respondent. ... Mr.Hemantkumar F.Pawar, advocate for the petitioner. Mr.H.D.Patil, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 21.06.2011. 2 W.P.No.880/11 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The present Respondent had filed a suit for declaration of ownership and injunction. The petitioner appeared in the suit and sought time for filing Written Statement. Thereafter, sought adjournment on some occasion. The Court passed an order of 'No written statement'. The present petitioner moved an application for setting aside 'No written statement' order along with the written statement. The said application came to be rejected. Aggrieved thereby, the present Writ Petition has been filed. 4. Mr.Pawar, learned counsel submits that the defendant has given reasons for not filing the written statement earlier i.e. the concerned Manager of the defendant who was in know of the 3 W.P.No.880/11 facts had underwent by-pass surgery and, therefore, the written statement could not be filed. The evidence of the plaintiff had not yet begun when he had filed the said application. As such an opportunity should have been granted to the petitioner. 5. Mr.Patil, learned counsel for the plaintiff vehemently opposes the petition and submits that vague reasons were mentioned. The said reasons were not substantiated. The petitioner intentionally avoided to file written statement just to protract the proceedings and the said person i.e. the Manager was present during the course of the proceedings and as such the reasons stated are absolutely incorrect. U/o 8 Rule 1 of the C.P.C. the written statement has to be filed within 30 days or at the most the extension is granted by the Court within 90 days and for the said purpose, Mr.Patil, learned counsel relied on the judgment of the Apex Court in a case of "Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and others" reported in AIR 2006 Supreme Court 396. 4 W.P.No.880/11 6. It is a fact that when an application was filed for setting aside 'No written statement', the evidence of the plaintiff had not yet begun. The petitioner had given the reason. Moreover, it is always in the fitness of things to get the matter decided on merits. Taking into account the fact that when the application was filed along with the written statement, the evidence of the plaintiff had not yet begun. The plaintiff would get an opportunity to meet the case of the defendant in the evidence. Taking into account the nature of the suit and the fact that the petitioner is a Patsanstha, custodian of public money, I am inclined to allow the petition. However, for the delay that is caused, the petitioner deserves to be mulct with costs. 7. The impugned order is quashed and set aside and the application Exh.49 is allowed subject to condition that the petitioner pays costs of Rs.5,000/- to the Respondent i.e. original plaintiff within a period of four (4) weeks from today. 5 W.P.No.880/11 8. Rule accordingly made absolute. No costs. (S.V.GANGAPURWALA,J.) asp/office/wp88011