( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 92 OF 2009 WITH CIVIL APPLICATION NO. 7595 OF 2009 WITH CROSS OBJECTION (ST) NO. 17283 OF 2009 Malanbai w/o. Deepa Rathod and anr. .. Appellants Versus Sanju Babu Pawar .. Respondent Shri V.R. Dhorde, Advocate for the appellants. Shri Hemant Surve, Advocate for sole respondent. CORAM : P.R. BORKAR,J. DATED : 26.08.2009 P.C. :- 1. Heard Shri V.R. Dhorde, Advocate for the appellants and Shri Hemant Surve, Advocate for sole respondent. This Appeal From Order is directed against the order of remand with permission to file written statement as passed by the learned Adhoc District Judge-1, Jalna, in Regular Civil ( 2 ) Appeal No.155 of 2008, decided on 30.06.2009. 2. The facts giving rise to this appeal may be stated as below:- . Present appellants are original plaintiffs. They filed suit bearing Special Civil Suit No. 15 of 2008, in the Court of Civil Judge, Senior Division, Jalna, stating that they were in need of money and therefore they borrowed Rs.1 lakh from the defendant. The defendant agreed to lend money but insisted on execution of sale-deed as security, which was executed on 03.06.2005. The suit is for declaration that the sale-deed was nominal, not to be acted upon and there was stipulation that as and when the amount is repaid, the property will be re-conveyed. 3. Summons was served on the present respondent/original defendant. He appeared in the suit and engaged an advocate, but failed to file written statement. Ultimately, suit came to be decreed on 22.07.2008 by the learned Civil Judge, Senior Division, Jalna and he gave declaration that the registered sale deed bearing No. 1840 ( 3 ) dated 03.06.2005 was nominal and was executed as security for the loan transaction. As against the same, present respondent/original defendant filed appeal bearing Regular Civil Appeal No. 155 of 2008. The same came to be heard by the Adhoc District Judge-1, Jalna and he allowed the appeal partly. He set aside the judgment and decree passed by the Trial Court and remanded the matter, subject to payment of costs of Rs.4000/-, within a period of three weeks from the date of the order. By para No. 5 of the order the learned Adhoc District Judge-1, Jalna, directed the Trial Court to give opportunity to defendant to file written statement, who shall file his written statement within a period of one month from the date of appearance i.e. 30.07.2009. Thereafter, the Trial Court was to decide the matter afresh after giving opportunity to both sides for leading evidence. 4. The learned Adhoc District Judge-1, Jalna, noted in para 8 of the judgment that the suit was filed on 20.12.2007 and it was registered on 05.02.2008. The respondent/defendant appeared through his advocate on 18.02.2008 and sought time for filing written statement. Thereafter, the matter was adjourned for filing written statement on 17.02.2008, ( 4 ) 08.03.2008, 08.04.2008, 28.04.2008 and 21.06.2008. Since no written statement was filed, order was passed on 21.06.2008 to proceed without written statement and the matter was fixed for evidence on 16.07.2008, on which day the plaintiff filed his affidavit (Exh.16) and also filed Exhs. 20, 21 & 22. The sale deed was at Exh.17, V.F. 7/12 extract was at Exh.18 and mutation entry was at Exh.19. It is noted that the affidavits were verified by the Trial Court on same day i.e. on 16.07.2008, but there was no endorsement that call was given to the defendant & his advocate and they were absent. It is also found that the copies of the affidavits were not given to the defendant or his advocate or that they were absent when the matter was called. 5. The learned Judge referred to Order XVIII of the C.P.C. and stated that it was mandatory that copies of the affidavit should be supplied to other side well in advance. In the present case no order of proceeding ex-parte against the defendant was passed. 6. In view of ratio laid down by the Supreme Court in the case of Modula India V/s. Kamakshya Singh Deo, (1988) 4 ( 5 ) S.C.C.619, even in-case defence is struck off, the defendant has right to cross-examine the plaintiff & his witnesses and also address the Court generally on the merit of the case. As observed in para 6, the defendant who has not filed written statement has said rights. In the present case, copies of the affidavits were not provided to the defendant or his advocate. It does not appear that they were given opportunity of cross-examining the plaintiffs and their witnesses and in the circumstances it cannot be said that the decision to remand the matter is in any way wrong. 7. The learned Adhoc District Judge-1, Jalna, in para 10 of the judgment referred to abuttals as mentioned in the plaint and abuttals as stated in the sale-deed it is stated that Western and Southern boundaries of the property do not tally and it was likely to cause confusion and such decree would not have been helpful to the plaintiff. He also noted in para 11 of the judgment that the plaintiffs concealed from the Court that the defendant had filed Regular Civil Suit No. 5 of 2007 filed by the present defendants/respondents, in which he has obtained permanent injunction against the present appellants/plaintiffs. It was represented to the ( 6 ) Trial Court that the plaintiffs were in exclusive possession of the property even though the decree passed in Regular Civil Suit No. 5 of 2007, by the learned 5th Joint Civil Judge, Junior Division, Jalna, on 11.09.2005, was binding on them. 8. The First Appellate Court also considered that the written statement ought to have been filed within a period of 90 days. It is also noted that the defendant has not made out proper grounds which prevented him from filing written statement. Ultimately, he allowed filing of written statement within period of one month from the date of appearance, as stated above. 9. It is stated before this Court by Shri Hemant Surve, Advocate for the respondent that the respondent/ defendant has already filed written statement in the Trial Court, as directed by the First Appellate Court. However, in view of stay granted by this Court, the written statement is not taken on record and it is awaiting acceptance. In view of Order VIII Rule 1 of the C.P.C., in my opinion, the respondent/defendant is required to show reasons for ( 7 ) acceptance of the written statement beyond period of 90 days. The written statement can be accepted only after the Court is satisfied about delay. At the same time, remand is necessary irrespective of whether the written statement is accepted or not. The defendant has every right to cross-examine the plaintiffs and their witnesses and also address the Court generally on merit of the case as observed in the case of Modula India (Supra). 10. In view of this, this Appeal From Order is partly allowed and following order is passed :- (i) The Appeal From Order is partly allowed. (ii) The order of remand is hereby confirmed. (iii) The respondent/original defendant is directed to file application justifying reasons for acceptance of written statement. Said application may be considered on merit after hearing both sides and thereafter the decision about acceptance or non- acceptance of the written statement may be taken by the Trial Court and then the Trial Court shall proceed further to decide the suit in accordance with the law. ( 8 ) (iv) The parties before this Court to appear before the Trial Court on 07.09.2009, since that is the date already fixed by the Trial Court. (v) The learned advocate for the respondent does not want to press the Cross-Objection. Therefore, the Cross-Objection stands disposed of. (vi) In view of disposal of Appeal From Order, Civil Application No. 7595 of 2009 does not survive. The Civil Application also stands disposed of. [P.R. BORKAR,J.] snk/2009/AUG09/ao92.09