: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. 3452 OF 2007 Smt.Yamunabai Sadashiv Mate and Ors. ...Petitioners Versus Pravin Tulsidas Somayya ....Respondents M.M.Sathaye, Adv. for the petitioners. P.N.Joshi Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. 7th January, 2008. P.C. P.C. P.C. : : : 1. The petitioner is aggrieved by the fact that when the respondent was allowed to amend the plaint and the amendment application was allowed on 29.7.2005, the petitioners/defendants were not permitted to file their additional written statement. :2: :2: :2: 2. It is not disputed before me that the plaint was amended on 29.7.2005 and an application in that behalf (Exhibit-10) preferred by the respondents was allowed. The plaint was amended,. However, the petitioner did not file the additional Written statement and hence an order came to be passed on 4.2.2006 directing that the matter must proceed without any additional written statement. Thereafter, it appears that the matter was transferred to the court of Civil Judge Senior Division, Nashik and the Special Civil Suit No. 455 of 2006 is a renumbered proceeding. Once again the petitioner applied for recalling the order of ‘no written-statement’ on the amended plea and requested that they may be allowed to file supplemental/additional Written Statement. That application has been contested and on 22.3.2007 it has been rejected. 3. The court has observed that there is no provision for additional written statement in the Code of Civil Procedure, inasmuch as, the Code of Civil Procedure does not envisage additional Written Statement being filed. :3: :3: :3: 4. After the petition was placed before this court and notice was issued, an Affidavit-in-reply has been filed. The contention of Mr.Joshi is that the order of 4.2.2006 is not challenged and remains in force. He submits that as long as this order is not set aside the petitioners cannot file additional Written statement. 5. I have perused the petition and the Annexures thereto, so also, the Affidavit filed in reply. I have also perused the order of 4.2.2006. 6. It is clear from a perusal of the proceedings that the petitioner applied by an Application Exhibit-129 for permitting them to file an additional Written statement on record and that fact is undisputed. Further, that there is an amendment to the plaint is also undisputed. Hence, to grant full and proper opportunity, so also in the interest of justice, the order of 4.2.2006 was sought to be recalled. It may be that the application does not contain such specific prayers. However, perusal of Exhibit-129 :4: :4: :4: would demonstrate that the petitioner’s prayer is that the additional written statement be allowed to be placed on record. In effect, the request is to recall any orders which would be a bar in placing such additional written statement on file. Therefore, a hypertechnical view of the matter is not necessary to be taken. 7. There is substance in the apprehension of Mr.Joshi that the petitioners are delaying the proceedings. The suit is expedited by this court, the respondent has stepped into the box and before further steps could be taken, subject applications are made. I made it clear to Mr.Sathaye that the petitioners would have to abide by such conditions as are imposed by this court. He fairly states that they would abide by the same. In such circumstances, without entering into any larger controversy, interest of justice would be subserved by the following order and directions : (a) The petitioners to file their additional Written Statement within a period of fifteen days from the date of the receipt :5: :5: :5: of copy of this order. (b) The petitioner to pay costs quantified at Rs.5,000/- to the original plaintiff in the Trial Court. If the costs are paid and proof thereof is produced, so also additional Written statement is filed within fifteen days as above, the same to be taken on file of the Reg.Civil Suit No. 455 of 2006. Thereafter, the suit shall proceed on merits and in accordance with law. The Trial Court to endeavour and dispose off the suit within a period of six months from today. 8. The order dated 22.3.2007 and 4.2.2006 are quashed and set aside. They stand substituted by the above directons. Petition disposed off. No costs. **********