:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 3162 OF 2007 Shri Shankar Kisan Patil and anr. ...Petitioners Versus Shri Shankar Dashrath Patil and anr. ....Respondents Mr.Pratap Patil Adv. for the petitioners. Sampatrao A. Pawar Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. 7th January, 2008. P.C. P.C. P.C. : : : 1. Heard learned counsel for the parties. 2. While dealing with the application for interim injunction, the present petitioners/original defendants :2: :2: :2: had filed an exhaustive reply. In the reply they dealt with the allegations and averments in the plaint as well. Their case was that the said comprehensive reply being on record, they bonafide believed that there is no necessity of filing a separate Written Statement. It is in these circumstances that the Written Statement was not filed. An application was made to condone the delay in filing of the Written Statement formally. the prayer is that the reply to the interim application be treated as Written Statement. For that limited purpose the direction (no Written Statement) be recalled. 3. The Trial Court having refused to condone the delay and take the Written Statement on record, that the present petition is filed. 4. After taking instructions, Mr.Patil states that the petitioners would not file a separate Written Statement but would place an Affidavit on record of the Trial Court adopting the reply Affidavit as their Written Statement. He submits that this would meet the ends of justice. :3: :3: :3: 5. However, Mr.Powar submits that the Trial Court was right in refusing to condone the delay and he places reliance upon the decision of the Hon’ble Supreme Court in the case of M/s. Aditya Hotels (P) Ltd vs. Bombay Swadeshi Stores Ltd reported in 2007(3) ALL MR page 324. 6. In my view, the principle laid down in this decision is binding upon the courts below as well as on me. However, the judgment states that some reasons have to be indicated to justify acceptance of the Written Statement after the period prescribed under Order 8 Rule 1 of CPC as amended with effect from 1.7.2002. 7. In the present case, the application made by the defendants states that some documents pertaining to the suit were not available and that is how the Written Statement could not be filed. 8. Although, specifically no plea was raised before the Trial Court with regard to adopting the reply as Written Statement, yet, Mr.Patil states that :4: :4: :4: the petitioners would only like to adopt their reply as Written Statement in the suit. The suit reply is comprehensive and deals with all allegations and averments in the plaint. In such circumstances and in facts peculiar to this case, it is directed that the order passed on 16.2.2001 is recalled subject to the petitioners filing an Affidavit within a period of ten days in the Trial court adopting their reply to the interim application as Written Statement and paying costs quantified at Rs.2,000/- to the original plaintiff in the Trial Court. This order is passed because the reason assigned that some more documents were not available is supported by bonafides of the present petitioners who placed their version with regard to the merits comprehensively at an inter-locutory stage. It is in these peculiar facts, that the present order has been passed and it is directed that if the compliance is made as above, the suit shall proceed in accordance with law, treating the present petitioners reply affidavit as Written Statement in the suit. All contentions on merits are expressly kept open. Petition disposed off. No order as to costs. :5: :5: :5: *********