SCA/687020/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6870 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = HASMUKHBHAI KANTILAL SOLANKI - Petitioner(s) Versus KANTILAL LUNAJI SOLANKI - Respondent(s) ========================================= = Appearance : MR PM DAVE for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR YM THAKKAR for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/11/2008 ORAL JUDGMENT SCA/687020/2006 2/5 JUDGMENT 1. RULE. Shri Y.M. Thakkar, learned advocate waives service of rule on behalf of the respondent. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the present Special Civil Application is taken up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India the petitioner-original defendant has prayed for an appropriate writ, order or direction quashing and setting aside the impugned order passed by the learned trial Court below Exh. 70 by which the learned trial Court has dismissed the application by not accepting the prayer of the petitioner-original defendant to take the written statement on record. 4. It was the contention on behalf of the petitioner-original defendant that there was a litigation up to this Court against the interlocutory order and after termination of the aforesaid proceedings, the petitioner-original defendant and the respondent-original plaintiff, the father and son had tried for settlement and, therefore, the written statement could not be filed and, thereafter, when it was found that settlement is not likely, at that stage, the petitioner-original defendant submitted an application to permit him to file the written statement on record, which came to be rejected on the ground that the same was submitted after a period of five years and the talks for settlement between the petitioner-original defendant and the respondent-original plaintiff cannot be said to be an exceptional case. Being aggrieved and dissatisfied with the same, the petitioner-original defendant has preferred the present Special Civil Application under Article 227 of the SCA/687020/2006 3/5 JUDGMENT Constitution of India. 5. Shri P.M. Dave, learned advocate appearing on behalf of the petitioner-original defendant has vehemently submitted that the learned trial Court has taken too technical view by not permitting the petitioner-original defendant to file the written statement. It is submitted that sufficient cause was made out by the petitioner-original defendant for not filing the written statement earlier. It is submitted that by not permitting the petitioner-original defendant to file the written statement, serious consequences have occurred so far as the petitioner- original defendant is concerned, and, therefore, even by imposing reasonable cost upon the petitioner-original defendant, the learned trial Court ought to have granted permission to the petitioner-original defendant to file the written statement. It is submitted by Shri Dave, learned advocate appearing on behalf of the petitioner-original defendant that the petitioner-original defendant is ready and willing to pay reasonable cost to the respondent-original plaintiff herein, which may be quantified at Rs. 5,000/- and, therefore, it is requested to allow the present Special Civil Application. 6. Shri Y.M. Thakkar, learned advocate appearing on behalf of the respondent-original plaintiff has submitted that in the facts and circumstances of the case, the learned trial Court has not committed any error in not permitting the petitioner- original defendant to file the written statement. As rightly held by the learned trial Court, no exceptional case was made out for not extending time to file the written statement and, therefore, it is requested to dismiss the present Special Civil Application. SCA/687020/2006 4/5 JUDGMENT 7. It is also further submitted by Shri Y.M. Thakkar, learned advocate appearing on behalf of the respondent-original plaintiff that the issues have already been framed long back and the examination-in-chief of the respondent-original plaintiff is also over and he was only to be cross-examined and, therefore, it is requested to dismiss the present Special Civil Application. 8. Heard the learned advocates appearing on behalf of the respective parties. It cannot be disputed that taking away the right of the petitioner-original defendant to file written statement will have serious consequence and the petitioner- original defendant will go undefended. It is also required to be noted that the respondent-original plaintiff and the petitioner- original defendant are the father and son. It was the contention on behalf of the petitioner-original defendant that as the talks for settlement were going on, written statement was not filed. Considering the relationship between the petitioner-original defendant and the respondent-original plaintiff, the same is a plausible reason for not filing the written statement earlier. Under the circumstances and considering the relationship between the petitioner-original defendant and the respondent-original plaintiff, on imposing reasonable cost, the learned trial Court ought to have taken on record the written statement of the petitioner-original defendant. If such a course would have been adopted, it would have met the ends of justice. 9. Under the facts and circumstances of the case, the impugned order passed by the learned trial Court deserves to be quashed and set aside and the learned trial Court is SCA/687020/2006 5/5 JUDGMENT directed to take on record the written statement filed by the petitioner-original defendant on condition that the petitioner- original defendant shall deposit a sum of Rs. 5,000/- towards cost with the learned trial Court within a period of four weeks from today as agreed by the learned advocate appearing on behalf of the petitioner-original defendant . On such a deposit, the learned trial Court is directed to permit the respondent- original plaintiff to withdraw the same. In the facts and circumstances of the case, as requested by the learned advocates appearing on behalf of the respective parties, the suit is ordered to be expedited. 10. With this, the present Special Civil Application is disposed of as allowed. Rule is made absolute. Direct service is permitted. (M.R. SHAH, J.) siji