1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2800 OF 2009 Uttam s/o Jairam Kamble, Age: 52 years, Occ: Agriculture, R/o. Anjansonda (Bk.) Tq. Chakur, District Latur & Anr. .. Petitioners Versus Pandit s/o Jairam Kamble, Age: 59 years, Occ: Service, R/o. S.T. Colony,Building No.2-B, 3rd Floor, Room No.14, Bhivandi, District Thane, Mumbai & Anr. .. Respondents ... Mr. V.D. Godbharle, Advocate for petitioners. Mr. A.V. Patil, Advocate holding for Mr. V.D. Gunale, Advocate for respondent No.1. Respondent No.2 : Absent. ... CORAM : K.K. TATED, J. DATE : 4TH SEPTEMBER, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. Heard learned Counsel for the petitioners and learned Counsel for respondent No. 1. Though 2 respondent No. 2 is served, nobody appeared on his behalf when the matter called out. 2. This Court by order dated 13-04-2009 (Coram: B.R. Gavai, J.) issued notice to the respondents returnable eight weeks with an intimation that the matter will be heard and finally decided at admission stage. 3. This Writ Petition is filed by the petitioners - original defendant Nos. 2 and 3 challenging the order dated 05-02-2009 passed below Exhibit-31 by the Civil Judge, J.D. Chakur, District Latur in R.C.S. No. 144/2007. Respondent No. 1 filed R.C.S. No. 144/2007 in the Court of Civil Judge, J.D. Chakur for partition and possession of H.U.F. property. Prayer clause-I of the said suit reads as under. "(I) That, by effecting partition decree the plaintiff may kindly be put in khas possession to the extent of 1/3rd share in the suit 3 properties bearing land Gat No. 667/1/2 Adm. 2 H. 00 R. L.R. Rs. 0.61 paise, Gat No. 158/1/2 Adm. 0 H. 70 R. L.R. Rs. 0.89, Gat No.58/1/2 Adm. 0H 26R. L.R. Rs. 0.40 paise, Gat No. 62 Adm. 0 H. 63 R. L.R.Rs. 1.03 paise and housing property bearing G.P. House No.227 in to 1/2 portion and another house No. 215 situated at village Ajansonda (Bk.) Tq. Chakur, Dist. Latur. In the said suit, summonses were served on original defendants on 23-01-2008 but it remained on the part of original defendants to file their W.S. in time and therefore, "No W.S." order came to be passed on 24-03-2008 against original defendant Nos. 1 and 2 and on 24-09-2008 against original defendant No.3. Thereafter, the petitioners and respondent No. 2 filed application dated 11-12-2008 for recalling No W.S. order and allowing them to file their W.S. That application was partly allowed by the Civil Judge, J.D. Chakur by order dated 05-02-2009. The trial Court allowed respondent No. 2 - original defendant No. 1 to file W.S. but rejected the petitioners' application 4 allowing them to file their W.S. 4. It is the case of the petitioners that respondent No. 2 is old aged person and was suffering from illness. Because of respondent No. 2's illness, it remained on their part to file W.S. in time. Learned Counsel appearing on behalf of the petitioners submitted that considering close relations between the parties i.e. respondent No. 1 is son of respondent No. 2 and brother of petitioner No.1, delay in filing W.S. to be condoned. Petitioner No. 2 is subsequent purchaser of the property from petitioner No. 1. Learned Counsel appearing on behalf of the petitioners relied on the Apex Court judgment in the matter of Sambhaji and others vs. Gangabai and others in Civil Application No. 6731 of 2008 dated 20-11-2008. Apex Court in Para 15 of the said judgment held that considering close relations between the parties, a liberal approach to be taken at the 5 time of condoning delay in filing W.S. Para 15 reads as under. "15. In the instant case the trial court proceeded on erroneous premises that there was no scope to accept the written statement after 90 days. The High Court by the impugned order held that though it had power, no case was made out to accept the prayer. We have considered the grounds indicated by the appellants seeking acceptance of the written statement filed belatedly. They cannot be considered to be trivial or without substance. In the case of this nature where close relatives are litigants a liberal approach is called for. In the circumstances we set aside the impugned order of the High Court affirming the order passed by the trial court refusing acceptance of the written statement. The matter is not very complex. We request the trial court to complete trial of the suit within the period of six months. The appeal is allowed without any order as to costs." 5. On the other hand, learned Counsel appearing on behalf of respondent No. 1 strongly 6 opposed this petition on the ground that the petitioners failed to produce any cogent evidence for considering their application to set aside No W.S. order and allowing them to file W.S. He further contended that though respondent No. 2 was not keeping well, the petitioners failed to explain the circumstances which prevented them to file W.S. in time. 6. In any case, considering the relations between the petitioner No.1 and respondents and considering the Apex Court Judgment in the matter of Sambhaji (supra), the order passed by the Civil Judge, J.D. Chakur dated 05-02-2009 in respect of original defendant Nos. 2 and 3 is set aside. The application filed by the petitioners i.e. original defendant Nos. 2 and 3 is allowed. No W.S. order passed against the petitioners is set aside and allowed them to file their W.S. within four weeks from today only, on condition to pay costs of Rs.15,000/- (Rs. Fifteen thousand only) to respondent No.1. 7 Costs of Rs. 15,000/- is imposed because the petitioner No. 2 is not family member of petitioner No. 1 and respondents. He is a third party person who purchased the property during the pendency of the said civil suit. Costs to be paid before filing the W.S. 7. Writ Petition is disposed of accordingly. Rule made absolute in above terms. [ K.K. TATED, J.] sut/SEP09/wp2800.09