SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3763 OF 2008 Shastri Constructions Pvt.Ltd. ...Petitioner Versus Chintamani Nagari Patsanstha Maryadit & Ors. ...Respondents ...... Mr.G.S.Godbole with Ms.M.S.Parasnis for Petitioner. Mr.N.C.Walimbe for Respondent No.1. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Walimbe waives notice for Respondent No.1, who is the contesting Respondent. For the purpose of present Writ Petition, it is agreed that notice to Respondent No.2 can be dispensed with, as the issue to be addressed in this Petition is only concerning Respondent No.1. : 2 : 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Civil Judge, Junior Division, Pimpri dated 29th March 2008 below Exhibit 31 read with Exhibit 1 in R.C.S.No.32 of 2004. By this order, the Trial Court has not only set aside the no written statement order passed on 16th June 2004 but permitted the Respondent No.1 to file written statement on record. This indulgence has been shown for the reasons recorded, in particular, in Paragraphs 7 to 8 of the impugned Judgment. The Trial Court has held that there is another Suit pending between the parties and the Respondent No.1 took steps for clubbing of both Suits. The delay caused on account of that application coupled with the fact that an opportunity should be given to the Respondent No.1/Defendant No.2 to contest the matter, the order dated 16th June 2004 of no written statement came to be set-aside and Defendant No.2 was permitted to file written statement subject to : 3 : payment of cost. 5. The question is: whether the reason weighed with the Trial Court can be said to be exceptional circumstance, having regard to the fact situation of the present case. It is common ground that the Suit was filed on 12th March 2004 and summons were duly served on the Respondent No.1 (Defendant No.2) on 18th March 2004. After service of summons, instead of filing the written statement, the Respondent No.1 filed application for extension of time on 29th April 2004 which request was granted by the Trial Court. Inspite of one indulgence shown, the Respondent No.1 did not file the written statement within extended time. Instead preferred Application on 16th June 2004 to grant further extension on the ground that the Respondent No.1 has moved application before the District Court for clubbing of said Suit as well as cognate Suit between the parties being R.C.S.No.463 of 2004. Significantly, the said Application was rejected on 16th June 2004 itself and the Court proceeded to order no written statement. The order dated 16th June 2004 refusing further extension of : 4 : time on the ground as pressed was allowed to become final. The Respondent No.1 only on 24th August 2007 after lapse of over three years and two months filed application for setting aside order dated 16th June 2006 recording no written statement or to permit him to file the written statement on record. While considering this Application in the impugned Judgment, the Trial Court was impressed with the same reason which was rejected on 16th June 2004. In that, the Respondent No.1 had moved application before the District Court for clubbing of two Suits and which was the reason pressed into service for granting further time to file written statement. That cannot be treated as exceptional situation which alone can be good reason for the Trial Court to exercise discretion in favour of the Defendant after lapse of ninety days from the date of service of the suit summons. The only other reason recorded by the Trial Court in the impugned Judgment is that an opportunity should be given to Defendant No.2. Once again unless the concerned Defendant were to offer satisfactory explanation which would qualify the requirement of exceptional situation, the Trial Court cannot assume : 5 : jurisdiction to condone the delay after ninety days from the date of service of the summons. Thus understood, order in question cannot stand the test of judicial scrutiny. The fact that the Respondent No.1 (Defendant No.2) has already filed written statement in terms of the impugned order and has also paid the cost does not take the matter any further. The order challenged in this Writ Petition will have to be set-aside. At best, the Respondent No.1 would be entitled for reimbursement of cost paid by him. 6. Accordingly, this Petition succeeds. The impugned Judgment and Order is set-aside. The Respondent No.1 will be free to withdraw amount of Rs.2,000/- (Rupees Two Thousand) deposited in the Trial Court in terms of the impugned order, if so advised. 7. Needless to observe that the written statement of Respondent No.1 which is already taken on record be ignored and the Suit proceeded on the basis of order dated 16th June 2004 against Respondent No.1. : 6 : A.M.KHANWILKAR, J.