1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5900 OF 2008 Mumtaz Abbas Peerzadha Petitioner versus Rashide Abbas Peerzadha Respondents Mr.K.P.Mali for petitioner. Ms.Manisha B. Gawade for respondent. CORAM : A.S.OKA, J. DATE : 21st July 2009 PC :- 1. The learned counsel for the parties state that the mediation has failed. Hence, the petition is taken-up for admission. Considering the narrow controversy involved, the petition deserves to be heard finally at this stage. 2. The petitioner and the respondent are the real sisters. The respondent filed a suit for an injunction against the petitioner. In the said suit the written statement was not filed by the petitioner within the time provided by law. Therefore, a Notice of Motion was taken-up for setting aside the order of the Trial Court to proceed without written statement. The said Notice of Motion has been dismissed by the impugned order. 3. The opposition to the Notice of Motion was on the ground that there was a delay of more than 400 days and there was no explanation for delay. It is pointed out that the petitioner is an educated litigant and was represented by an advocate. Therefore, there is no justification for such a long delay. 2 4. As stated earlier, the petitioner is the real sister of the respondent. The petitioner had engaged services of an advocate. In the affidavit in support of the Notice of Motion, the petitioner has referred to the proceedings of the Notice of Motion for injunction as well as proceedings taken-out under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 (CPC). The petitioner has stated the reasons for not filing the written statement earlier. Considering the nature of the suit and close relationship between the parties, this was a case where the written statement ought to have been allowed to be produced. The prejudice which may be caused to the respondent can be compensated by ordering payment of costs. In this case, the amount of costs deserves to be quantified at Rs.5,000/-. 56. Hence, I pass following order :- (a) The impugned judgement and order dated 14th July 2008 is quashed and set aside; (b) The Notice of Motion NO.932 of 20078 filed by the petitioner is made absolute in terms of prayer clauses (1) and (2) thereof subject to payment of costs of Rs.5,000/- to the respondent within six weeks from today; (c) Payment of costs and/or deposit of the costs with the Trial Court is the condition precedent; (d) If compliance is made with this order regarding payment of costs, the written statement of the petitioner be taken on record by the Trial Court, provided, the same is tendered within eight weeks from today. (A.S.OKA, J.)