1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4535 OF 2009 Ashok Bajrang Bhosale ....... Petitioner versus Vijay Bhagwan Shetty ........Respondent. Mr. L.S. Gaikwad adv. for the Petitioner Mr. .M. Pungliya adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 06th November, 2009. P. C.: 1. Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing. 2. The petitioner has entered into an agreement of lease with the respondent in the year 2001 where under the hotel building situated on a piece of land admeasuring about 38 ares has been given on lease. The agreed amount of lease money is Rs. 15,000/- per month and the term of lease is for a period of 25 years. The respondent lessee has deposited an amount of Rs. 15 lacs interest free by way of deposit. During the subsistence of the lease, disputes crept up between the parties which gave rise to filing of civil suits, one of such civil is civil suit no.1593/06. This is a suit filed by the respondent lessee wherein a prayer is made that the 2 Plaintiff is obliged to pay rent at the rate of Rs. 7500/- per month from October 2003 onwards for the reasons stated in the plaint. A further prayer is made for adjustment of half the rent for the period from October 2003 to April 2006. One more relief prayed in the plaint is for refund of Rs. 7,50,000/- which was deposited as interest free deposit by the respondent with the petitioner. As stated herein above some more suits are also filed and are pending before the court below. The facts narrated herein reveals that the petitioner has parted with the possession of the immovable property and the respondent is using the same for running of hotel business. The petitioners who are real brothers came to be served with the suit summons and consequent upon service, the petitioners did put in their appearance. However as the petitioners/defendants failed to file written statement within the stipulated time frame the order of “no W.S.” came to be passed on 17-1-2007 and the suit was proceeded and fixed for ex-parte judgment. However till date the ex-parte judgment has not been pronounced and the matter still pends in the trial court. 3. The petitioners moved an application on 31-1-2009 seeking permission of the court to file written statement on record by keeping the written statement and counter claim on record of the court along with the application Exh. 36. Two fold reasons are stated in the application seeking permission to file written statement and the counter claim. First reason is that the son of the defendant no.2 had damaged his kidneys and hence a complicated surgery for transplantation of the kidney had to be 3 performed during the relevant period. The wife of the defendant no.2 had donated the kidney which came to be transplanted in the body of the son of the defendant no.2. It is stated that on account of serious illness of the son of the defendant no.2, all the defendants who are real brothers and members of the joint family were mentally and financially in a bad shape and spent huge money for performance of the said surgery. The other reason is that the mother of the defendants was seriously ill and the defendants were as such engaged in looking after the ailing mother and the son of the defendant no.2. It is then stated in the application that for the reasons beyond the control of the defendants, they were unable to file their written statements and hence prayed for permission to file the same on record. It is crystal clear in the facts of the present case that if the petitioners are denied permission to file written statement on record, grave injustice is likely to be caused as the ex-parte judgment would be rendered, adversely affecting the valuable immovable properties and rights therein of the petitioners. The trial court rejected the application by observing that only if exceptional circumstances are shown to exist then only the discretion ought to be exercised by the court and not otherwise. It is then observed by the trial court that the petitioners have failed to place on record documentary evidence showing the illness of the son of the defendant no.2 and the documents indicating kidney transplant at a given hospital. The learned counsel for the petitioner submits that the advocate representing the petitioners in the trial court did not advise the 4 petitioners to place on record the medical papers indicating the treatment and the surgery performed on the son of defendant no.2 by about the time when the written statement was to be filed i.e. later part of 2006. However, the said documents are placed on record of the present petition. The medical papers from Jahamgir hospital, Pune are placed on record of the petition which reveals that by about the same time the son of defendant no.2 was hospitalized and was treated for the illness. True it is that the petitioners ought to have placed all the relevant documents on record of the trial court. In the absence of which it would not be possible for the court to properly appreciate the sufficiency of the cause for non filing of written statement within time. Be that as it may, as I am of the view that declining permission to the present petitioner to file written statement along with counter claim on record would result in grave injustice, I deem it appropriate to afford an opportunity to the petitioners to contest the case on merit by permitting them to file written statement on record. However, as the record clearly indicate that the petitioners have not taken timely steps in defending the suit and thereby have caused inconvenience to the respondent, and forced him into a protracted litigation, the respondent need to be adequately compensated. The learned counsel for the respondent touching the quantum of costs, indicated that in the event if the petition is to be allowed, the respondent needs to be paid cost in the sum of Rs. 25,000/-. In my view the cost as suggested by the learned counsel for the respondent would be just and adequate to be paid 5 by the petitioner to the respondent. 4. In the result in the interest of justice the writ petition is allowed. The impugned order passed by the trial court dated 30-3-2009 below Exh.36 is quashed and set aside. The application filed by the petitioner seeking permission to file written statement together with counter claim is allowed. The W.S. which is already placed on record shall form part of the record subject to the condition that the petitioners pay the cost of Rs. 25,000/- to the respondent within a period of four weeks from today. It is made clear that in the event if the petitioners fail to pay the cost of Rs. 25,000/- within the stipulated period of four weeks, the order passed by the trial court below Exh.36 dated 30-3-2009 would hold the field. Rule made absolute in the above terms. (A. P. Deshpande, J.)