1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1617 OF 2010 (Dr. Arunkumar N. Deshmukh & Anr. vs. Mrs. Suwarnamala R. Salavi & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 14, 2010. Heard Shri Chandurkar, learned counsel for the petitioners, Shri Naik, learned counsel for respondent No.1 and Shri Joshi, learned counsel for the respondent No. 2. This Court has issued notice on 08.04.2010. The matter is being considered in the light of earlier order dated 26.11.2009 passed by me in Writ Petition No. 5242 of 2008. There the application at Exh. 385 was restored back to the file of trial Court for taking fresh decision. It was also noticed that that application was moved at the stage of judgment and hence the application was directed to be decided at the earliest. Accordingly, by impugned order dated 28.01.2010, the Court of Civil Judge, Senior Division, Amravati, has decided that application and granted permission to defendant No. 5 before it (present Respondent No. 1) to file written statement. Shri Chandurkar, learned counsel has contended that the provisions of Order 8, Rule 9 of Civil 2 Procedure Code are not applicable in present circumstances and in spite of specific observations by this Court in its order dated 26.11.2009, the trial Court has not recorded any finding in this regard. He further states that as Respondent No. 1 herself was watching the proceedings for about 16 years, the provisions of Order 8, Rule 1 of CPC are not attracted and in this situation, he has pointed out that initially, there was no effort to file any written statement. The amendment on which reliance is being placed by Respondent No. 1 does not operate to her prejudice and hence cannot be a ground to permit her to file written statement. He further points out that written statement has been filed strategically only to fill in lacunae after the entire evidence is over and if said written statement is accepted on record and evidence is reopened, defendants No. 1 & 2 will be seriously prejudiced. His contention is, defendant No. 5 is trying to safeguard the interest of plaintiffs. Shri Naik, learned counsel has supported the impugned order. He states that this Court considered the controversy earlier in the light of material then available and as it was not satisfied, the matter was sent back for reconsideration and hence that order, therefore, does not have any bearing insofar as present adjudication is concerned. He has invited attention to the impugned order to show that there the trial Court has applied mind to relevant aspects and thereafter has permitted written statement to be filed on record. 3 According to him, there is no jurisdictional error. Shri Joshi, learned counsel for respondent No. 2 (original plaintiff) also supports the impugned order. The perusal of earlier order dated 26.11.2009 shows that this Court then found that certain vital details had then escaped the attention of trial Court while passing orders impugned on 21.10.2008. After noticing this, that order was set aside and Exh. 385 was restored for fresh consideration. When Exh. 385 was sent back for reconsideration, the finding recorded earlier lose their relevance. The facts now show that on 16.11.1990, an order of no written statement was already passed. The trial Court considered the plea of Respondent No. 1 that she was watching the proceedings for all these years, also noticed that there was an amendment and has also found that if original plaintiffs did not contest the suit appropriately, her entitlement may be seriously prejudiced. The order does not show any jurisdictional error or perversity. As I do not find any jurisdictional error or perversity, I am not inclined to interfere in the matter. Writ Petition is dismissed. However, there shall be no order as to costs. JUDGE *GS.