CW-3163/08-Dashmesh Oil Carrer & Ors.Vs. New India Assurance Co. Ltd. & Ors. Order dt.1.7.08 1/3 S.B. CIVIL WRIT PETITION NO.3163/2008 Dashmesh Oil Carrer & Ors. Vs. The New India Assurance Co. Ltd. & Ors. Date of order : 1st July, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Rakesh Arora for the petitioner. Mr. B.S. Bhati for the respondents. --------- 1. Heard learned counsels. 2. This writ petition is filed against the order dated 7.2.2008 whereby the learned trial Court refused to take on record the written statement of petitioner-defendant in suit for recovery filed by the plaintiff - New India Assurance Company Ltd. for recovery of a sum of Rs.10 lacs from the defendant. 3. The learned counsel for the petitioner-defendant submits that on account of heart ailment, the petitioner had to remain in hospital for considerable period and, therefore, could not attend the proceedings of the Court. Though the learned trial court vide order dated 19.7.2007 set aside the ex-parte order on the cost of Rs.1,000/-, even thereafter the defendant did not file its written statement in time and the belated written statement was not taken on record by the impugned order dated 7.2.2008 observing therein that no CW-3163/08-Dashmesh Oil Carrer & Ors.Vs. New India Assurance Co. Ltd. & Ors. Order dt.1.7.08 2/3 documentary evidence has been filed by the petitioner about heart ailment. 4. The learned counsel for the petitioner submits that on account of mistake of the counsel, though such evidence was available, the same could not be produced on record of the learned trial court and he submits that in view of the peculiar facts, a lenient view may be taken and written statement may be permitted to be taken on record which is already filed even though on imposition of further cost. 5. The learned counsel for the plaintiff-respondent does not fairly object to such request though he submits that in absence of such evidence the learned trial court cannot be said to have been committed any error in passing the impugned order dated 7.2.2008. 6. Having heard learned counsel, this Court, taking a lenient view in the matter in view of the exceptional facts and circumstances of the case, though with the observation that the defendant-petitioner or his counsel, who appeared in the matter before the Court ought to have been more vigilant and produced the relevant evidence before the learned trial court, allows one more opportunity to the petitioner and the written statement already filed in CW-3163/08-Dashmesh Oil Carrer & Ors.Vs. New India Assurance Co. Ltd. & Ors. Order dt.1.7.08 3/3 the learned Trial Court may be taken on record subject to imposition of cost of Rs.5,000/- which may be paid to the plaintiff / his counsel before the next date of hearing before the learned trial. Learned trial court may proceed with the matter further from that stage. 7. The writ petition is accordingly disposed of. The impugned order dated 7.2.2008 is quashed and set aside. [ DR. VINEET KOTHARI ], J. item No.15 babulal/-