SCA/6706/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6706 of 2008 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 ? ========================================================= BHARATBHAI CHHAGANBHAI DUDANI - Petitioner(s) Versus RAJESHKUMAR ISHWARBHAI DESAI & 2 - Respondent(s) ========================================================= Appearance : MR DHIRENDRA MEHTA for Petitioner(s) : 1, MR JB PARDIWALA for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, NOTICE UNSERVED for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/08/2008 ORAL JUDGMENT 1. Rule. Mr. J.B. Pardiwala, wavies service of notice of rule on behalf of the respondent No. 1, who SCA/6706/2008 2/6 JUDGMENT can be said to be main contesting party, as he is the plaintiff. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner original defendant has prayed for an appropriate writ, direction and / or order quashing and setting aside the order passed by the learned trial Court passed below Exh. 63 in Special Civil Suit No. 34 of 2007 dated 10.3.2008, by which the learned trial Court has rejected the application submitted by the petitioner original defendant to file written statement. 3. It appears that respondent No. 1 has instituted Special Civil Suit No. 34 of 2007 in the Court of learned Principal Senior Civil Judge, Bardoli for cancellation of the registered sale deed dated 24.4.2007. That the said suit came to be filed on 10.7.2007 and by order dated 5.9.2007 the learned trial Court closed the stage of filing written statement of the petitioner. It appears that SCA/6706/2008 3/6 JUDGMENT subsequently the petitioner-original defendant submitted the application Exh. 39 permitting him to tender / file the written statement and by order dated 18.12.2007 the learned trial Court allowed the application Exh. 39 permitting the petitioner to file the written statement on payment of cost of Rs. 1,000/- to Taluka Legal Aid Committee by 28.12.2007. It appears that still the petitioner did not pay the cost or Rs. 1,000/- to the Taluka Legal Aid Committee by 28.12.2007 as ordered by the learned trial Court while passing order below Exh. 39. That, thereafter the petitioner filed an application Exh. 63 praying for appropriate direction to the Nazir to accept the cost of Rs. 1,000/- as order by the Court, as the same was not deposited by 28.12.2007 within the time limit. The learned trial Court by impugned order dated 10.3.2008 dismissed the said application by observing that no justifiable reasons have been pointed out by the petitioner for not depositing the cost of Rs. 1,000/- on or before 28.12.2007. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court passed below Exh. 63, the petitioner-original defendant has preferred SCA/6706/2008 4/6 JUDGMENT the present Special Civil Application under Article 227 of the Constitution of India. 4. Considering the cause shown by the petitioner in the application that he was not aware of the order dated 18.12.2007 with respect to the payment of cost of Rs. 1,000/- for filing the written statement and, therefore, he could not deposit / pay the cost as ordered by the learned trial Court while passing the order below Exh. 39. Considering the above aspect of the matter, on imposition of further cost to be paid to the respondent No. 1 herein and extending the time to pay cost as ordered by the learned trial Court while passing the order Exh. 39, if the petitioner is permitted to file the written statement, the same will meet the ends of justice. 5. Shri Dhiren Mehta, learned advocate appearing for the petitioner has submitted that petitioner shall file the written statement before the trial Court within a period of 15 days from today. He has submitted that the amount of cost of Rs. 1,000/- will be deposited with the Taluka Legal Aid Committee SCA/6706/2008 5/6 JUDGMENT within 15 days from today. The Court suggested an amount of Rs. 5,000/- to be paid to the respondent No. 1 by way of cost of the present petition and the learned advocate for the petitioner is agreeable for the same. Shri Pardiwala, learned advocate appearing on behalf of the respondent No. 1 submitted that even the said cost of Rs. 5,000/- be also deposited with the Taluka Legal Aid Committee. 6. Shri Mehta, learned advocate appearing on behalf of the petitioner has submitted that it is understood that if the written statement is not filed within a period of 15 days from today then in that case the right of the petitioner to submit the written statement be closed permanently. 7. For the reasons stated above petition succeeds. The impugned order passed by the learned trial Court passed below Exh. 63 dated 10.3.2008 in Special Civil Suit No. 34 of 2007 is hereby quashed and set aside and the petitioner is permitted to file the written statement within a period of 15 days from today on further condition to deposit cost which is quantified SCA/6706/2008 6/6 JUDGMENT at Rs. 6,000/- to be deposited by the petitioner also within a period of 15 days from today to be deposited with Taluka Legal Aid Committee. It is understood that if the aforesaid cost is not deposited and the written statement is not filed within a period of 15 days from today the right of the petitioner to file written statement will be closed permanently. Rule is made absolute accordingly. Direct Service Permitted. ( M.R. Shah, J) Kaushik