(1) WP. 5122.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5122 OF 2010 Gunwantrao Madhavrao Shete .. Petitioner VERSUS Ganpatrao Madhavrao Shete died through LRs. and others .. Respondents Mr. Vivek Bhavthankar, Advocate for the Petitioner Mr. K.S. Bhore, Advocate for the respondent nos. 2 and 3 ... CORAM : V.R. KINGAONKAR, J. DATED : 28TH JUNE, 2010 PER COURT:- 1] By this Petition, the petitioner challenges order dated 19.4.2010 whereby he has been deprived of filing written statement. 2] The petitioner is original defendant no.5. He appeared in suit (R.C.S. no.134 of 2005) after he was joined as a party during the pendency of the suit. According to him, on 2.3.2009 he was to appear and file his written statement. He could not, however, file his written statement and appear in the suit because he was suffering from illness. He allege that the suit proceeded without his written (2) WP. 5122.2010 statement and thereafter he filed application (Exh. 174) on 12.4.2010 for setting aside the order dated 2.3.2009 of proceeding without his written statement. His contention before the trial Court was that his substantial rights pertaining to immovable property were likely to be affected if he was not given due opportunity to file the written statement. The trial Court rejected his application. 3] Heard learned counsel for the parties. 4] It appears that after the petitioner was joined as party in the suit, there were certain applications made for transfer of the suit and one of such application was filed in this Court. The petitioner was therefore unable to participate in the suit proceedings during pendency of the transfer application. It is true that he filed application for setting aside the "No W.S. order" after about a year. Still, however, the intervening developments could be noted by the trial Court. The petitioner admits that he had filed copy of medical certificate. It appears that he was suffering from pulmonary tuberculosis (T.B.). It is of common knowledge that T.B. requires a prolonged treatment which takes about 9 months. Patient who suffers from T.B. is normally under mental stress besides the physical problems. In the rural area, the tendency is to suppress the nature of such illness. Considering the nature of (3) WP. 5122.2010 illness and the fact that transfer applications were pending, the petitioner should have been allowed to file the written statement. The impugned order therefore appears to be unjust and as such deserves to be interferred with. 5] In the result, Petition is allowed, petitioner is allowed to file written statement on payment of costs of Rs.2000/- (Rs. Two Thousand) which shall be payable within a period of 4 weeks henceforth. The impugned order shall be deemed as set aside on payment of such costs. Costs shall be deposited in the trial Court Sd/- [V.R. KINGAONKAR, J.] arp