1 925 wp.4993.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 4993 OF 2011 Kashinath S. Ghag. ... Petitioner Versus Rajan S. Bagi and others. ... Respondents ----- Mr. S.A.Pawar for the Petitioner. Mr. Nitin S. Parkhe for Respondent No.1. ----- CORAM : A.S.OKA, J. DATE : 14 th October, 2011. P.C. 1 Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for Respondent No.1. 2 The challenge in this petition is to the order passed by the Co-operative Court on 28 th January, 2011, which is confirmed in revision by the Co-operative Appellate Court. 3 A dispute was filed in the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act, 1960 2 925 wp.4993.11 (hereinafter referred to as “the said Act”). The Respondent No.1 is the disputant and the present Petitioner is the second opponent. The Co- operative Court passed an order directing that the dispute will proceed without the written statement of the Petitioner. An application was made by the Petitioner for setting aside the said order. The Co- operative Court rejected the said application. A revision application was preferred by the Petitioner in which the said order has been confirmed. 4 The learned counsel appearing for the Petitioner submitted that in the application made before the Co-operative Court, valid reasons were set out for the delay in filing the written statement. Hence, the said application ought to have been allowed. The learned counsel appearing for Respondent No.1 submitted that the order to proceed without written statement was passed on 28 th January, 2004 and the application was belatedly filed in March 2008. He submitted that amended Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”) is applicable. 3 925 wp.4993.11 5 I have carefully considered the submissions. The dispute was filed prior to coming into force the amended Rule (1) of Order VIII of the said Code. Hence, the stringent provisions of the amended Rule will not apply. It is true that there is some default on the part of the Petitioner. However, even after the order to proceed without written statement was passed in January 2004, the dispute remained pending till the date on which the application was made by the Petitioner. In the application, it is stated that the Petitioner was not aware about the order to proceed without written statement. In absence of applicability of the stringent amended provisions of Rule 1 of Order VIII of the said Code, the Co-operative Court ought to have allowed the application subject to payment of costs. In the present case, the Petitioner has already deposited a sum of Rs.7,500/- towards costs. In addition, today, a demand draft in the sum of RS.7,500/- drawn by the Petitioner in favour of the Respondent No.1 has been handed over to the Advocate for Respondent No.1 in the Court. 4 925 wp.4993.11 6 In the circumstances, a case made out for setting aside the impugned orders: 7 Hence, I pass the following order: i. The impugned orders are quashed and set aside. The application made by the Petitioner on 17 th March, 2008 is allowed subject to payment of costs of Rs.15,000/-. The written statement of the Petitioner shall be taken on record by setting aside the order to proceed with the dispute without written statement ; ii. The Respondent No.1 shall be entitled to withdraw an amount of Rs.7,500/- deposited in this Court. iii. Hearing of the dispute is expedited and the Co-operative Court is directed to dispose of the dispute preferably on or before 31 st March, 2012 ; 5 925 wp.4993.11 iv. It will be open for the Respondent No.1 to lead additional / further evidence for dealing with the written statement of the Petitioner ;and v. The petition is allowed on above terms. [ A.S.OKA, J ]