1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No.105 of 2011 M/s Durga Enterprises, Shop No.2, Kamaxi Niwas, Budhwarpeth, Upper Bazaar, Ponda-Goa, represented by its Managing Partner, Shri Sanjeev N. Dessai …... Petitioner V e r s u s 1. Shri Sarvesh Rohidas Naik Shirodkar, son of late Shri Rohidas Naik Shirodkar, major in age, business married and his wife, 2. Mrs. Sujata Sarvesh Naik Shirodkar, major in age, housewife, married both residents of Kamaxi Building, Budhwar Peth, Upper Bazar, Ponda-Goa. ….. Respondents Mr. D.J. Pangam, Advocate for the Petitioner. Mr. A.D. Bhobe, Advocate for the Respondents. Coram: A. P. Lavande, J. Date: 14th July, 2011. 2 ORAL JUDGMENT: Heard Mr. Pangam, learned counsel for the petitioner and Mr. Bhobe, learned counsel for the respondents. 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner takes exception to the order dated 15/11/2010 passed by the Civil Judge, Junior Division, (B-Court), Ponda in Regular Civil Suit No.34/2010/B by which the written statement filed by the petitioner who is the defendant in the above suit has not been taken on record. 4. Briefly, the facts relevant for disposal of the petition are as under: The respondents filed the above suit against the petitioner/defendant. Summons in the suit was issued on 3 16/4/2010 and the defendant was served on 19/4/2010. Summons was issued to the defendant in which it was mentioned that written statement be filed on the next date with a note that the written statement be filed within 30 days. On the next date that is on 4/6/2010, the Presiding Judge was on leave and the case was adjourned to 28/6/2010. On 28/6/2010, application was filed on behalf of the defendant seeking extension of time to file written statement,which was granted and defendant was directed to file written statement within the prescribed time. On 12/7/2010, an application for rejection of the plaint was filed by the defendant to which reply was filed on 21/7/2010. On the same date application was filed by the defendant seeking time to file written statement. The matter was adjourned to 4/8/2010 on which date plaintiff filed application under Order VIII, Rule 10 of C.P.C to which the defendant sought time to file reply and the matter was adjourned to 18/8/2010. On 18/8/2010, order 4 was passed to file written statement subject to the decision on Exhibit 13(D). Thereafter, on 30/8/2010 the matter was adjourned for want of time and on 20/9/2010, the matter was again adjourned to 29/10/2010. On that day arguments were heard on Exhibits 9,11 and 13 and it was fixed for orders on the said exhibits. On 15/11/2010, the learned Judge disposed the application on Exhibit 13 (D) filed by the plaintiff under Order VIII, Rule 10 C.P.C. While dismissing the application under Order VIII, Rule 10, the learned Judge in paragraph 9 stated that it was again made clear that the written statement of the defendant is not taken on record. 5. Aggrieved by the order of the learned Trial Judge refusing to take on record the written statement of the petitioner, the petitioner has filed the present petition. 6. Mr. Pangam, learned counsel for the petitioner 5 submitted that on 18/8/2010, the learned Judge has passed a specific order by which written statement was ordered to be filed and which was subject to decision on Exhibit 13(D) and as such once the trial Court dismissed the application under Order VIII, Rule 10 the written statement ought to have been taken on record in the suit. Mr. Pangam further submitted that in any event the learned Judge could not have refused to take the written statement on record while disposing of the application under Order VIII, Rule 10 of C.P.C. Mr. Pangam further submitted that serious prejudice would be caused to the petitioner in case the written statement is not taken on record in the suit. 7. Per contra, Mr. Bhobe, learned counsel for the respondents supported the impugned order and submitted that no fault can be found with the impugned order and the petitioner itself had not made out any exceptional circumstance for extension of time for filing the written 6 statement beyond the period of ninety days. 8. Having considered the rival submissions and having perused the record, I am of the considered opinion that this petition under Article 227 of the Constitution of India deserves to be allowed. 9. It is pertinent to note that the Roznama of the suit discloses that on 18/8/2010 the learned Judge permitted the defendants to file written statement subject to decision on Exhibit 13(D). Indisputably, the trial Court dismissed the application Exhibit 13 (D) under Order VIII, Rule 10 of C.P.C. In any event the submission of Mr. Pangam that serious prejudice would be caused to the petitioner in the event the written statement is not taken on record deserves to be accepted, more particularly having regard to the order of the trial Court dated 18/8/2010. In my considered opinion, the plaintiff can be compensated 7 by directing the written statement to be taken on record which was allowed subject to decision on Exhibit 13(D). 10. In view of the above, the impugned order to the extent it disallows written statement of the defendant to be taken on record is quashed and set aside subject to the petitioner paying costs of Rs.10,000/- (Rupees ten thousand only) to the respondents. The costs shall be deposited in the trial Court within a period of four weeks. On costs being deposited, liberty to the respondents to withdraw the same. It is made clear that in case costs are not deposited, this order shall stand recalled. 11. The petition stands disposed of. A. P. Lavande, J. Ap/-