1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 4184 OF 2011 Godfrey Pascol Sutari ...Petitioner Versus Leena Pascol Sutari ...Respondent Mr.Mayur Khandeparkar with Ms. Sapna Rachure i/b. T.N.Tripathi & Co. for the Petitioner Mr.Deepak J. Lulia for the Respondent CORAM:- R.Y.GANOO, J. DATED:- 7th SEPTEMBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. 3. Learned Advocate appearing on behalf of the respondent waives service. By consent taken up for hearing. 2 4. The respondent herein filed suit in the City Civil Court, Mumbai, being Suit No.1425 of 2009 for diverse reliefs. The writ of summons came to be served upon the petitioner on 20th August, 2009. The petitioner did not file written statement and consequently, on 5.11.2010 order was passed namely, “Suit to proceed without written statement”. In order to have this order set aside, the petitioner took out Notice of Motion No.1392 of 2010. The learned Judge of the City Civil Court by his speaking order dated 8th April, 2011 dismissed the said motion. The petitioner has challenged this order dated 8th April, 2011. 5. I have heard learned Advocates on both sides. It is noticed that after the institution of the suit, Notice of Motion No.876 of 2009 was taken up by the respondent for interim relief and in the said motion a stand was taken by the petitioner that the court has no jurisdiction by utilizing the provisions of Section 9A of the Code of Civil procedure. That motion was ultimately disposed of. In the meantime, on 23rd March, 2010 the suit came to be dismissed on account of some mistake on the part of noting down the stage at which the suit was pending. The said suit was restored to the file on 13th April, 2010. 3 This Notice of Motion for seeking permission to file written statement was taken out in May 2010. On consideration of the relevant dates it is noticed that the delay of about 227 days has occasioned, which the learned Judge of the City Civil Court has declined to condone. 6. I have perused the impugned order dated 8th April. 2011. Learned Advocate appearing on behalf of the petitioner took me through the text of the affidavit in support of the notice of motion and other relevant papers to submit that the delay in filing the written statement was not intentional and the manner in which the suit came to be proceeded, the petitioner did not file written statement. He prayed for condonation of delay in filing the written statement and for setting aside the order dated 8th April, 2011. Learned Advocate for the respondent submitted that as the writ of summons was served on 20th August, 2009, the written statement ought to have been filed within one month from 20th August, 2009 or during the extended period as is understood in accordance with the provisions of Civil Procedure Code as regards filing of the written statement. He submitted that the delay is not properly explained and in any case, 4 the court has no power to condone the delay of more than 90 days and that is how the learned Judge was right in arriving at the conclusion. The authorities are not required to be quoted to observe that the courts are not required to be very sensitive about the period of 30/90 days and the court should attend to the matter appreciating the facts and circumstances in each case and the courts should be liberal in allowing the defendants to file written statement unless it is observed that the defendant has exhibited negligence in taking steps to file the written statement. After applying aforesaid principle, I am inclined to observe that in the facts and circumstances of the case, the petitioner can be allowed to file written statement and that the petitioner will have to be saddled with costs. Looking to the nature of the litigation and the quantum of delay in filing the written statement in so far as this case is concerned, I am inclined to fix the quantified cost of Rs.15000/- to be paid by the petitioner as the condition for filing the written statement. In my view, this would balance the situation and would be in the interest of both the sides. 7. In view of the above, this petition is disposed of by passing following order. 5 ORDER i) Order dated 8th April, 2011 passed in Notice of Motion No. 1392 of 2010 in Short Causes Suit No.1425 of 2009, presently on the file of the Judge, City Civil Court, Bombay, is set aside. ii) Petitioner to file written statement in the said Court on or before 17th September, 2011 as the suit is scheduled to appear before the learned Judge on 17th September, 2011. iii) Petitioner to pay to learned Advocate Mr. Deepak Lullia costs of Rs.15000/- (Rupees Fifteen Thousand Only) by drawing a cheque in the name of the respondents. This cheque to be delivered to the respondent on or before 15th September, 2011. Learned Advocate Mr.Lulia shall issue the regular receipt. Said receipt shall be produced in the court. On production of the receipt, the learned Judge of the City Civil Court shall receive the written statement, if so filed. If the costs are not paid as aforesaid, the learned Judge of the City Civil Court shall not accept the written statement and the suit 6 shall proceed without written statement. In view of the above, suit shall proceed on 17th September, 2011 in accordance with the provisions of law. (R.Y.GANOO, J.)