1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.441 OF 2010 Shankar Thaksen @ Jagannath Gite and others Petitioners versus Palkhi Procession and Workship of Kapaleshwar Mahadeo, Nashik and others Respondents S.G.Deshmukh i/by A.J.Kandarkar for petitioners. Surel Shah for respondents. CORAM : A.S.OKA, J. DATE : 15th April 2010 PC : 1. Submissions of the learned counsel for the parties were heard in the morning session. On 25th January 2010 notice for final disposal was issued. 2. The present petitioners are original defendant nos.3 to 6 and first to seventh respondents are the original plaintiffs. A suit for possession has been filed by the plaintiffs. The suit summons was served on the petitioners on 19th August 2008. An order was passed on 17th November 2008 by the Trial Court directing that the suit will proceed without written statement of the petitioners. On 15th January 2009, an application was made by the petitioners at Exhibit-69 for setting aside the aforesaid order 2 and for taking the written statement on record which was tendered along with said application. By the impugned order, the said application has been rejected. 3. Learned counsel for the petitioner submitted that extraordinary and exceptional circumstances were brought on record for explaining delay in filing the written statement. He submitted that hyper-technical view has been taken by the learned Trial Judge while deciding the application at Exhibit-69. He submitted that the said application ought to have been allowed. 4. The learned counsel for 1st to 7th respondents supported the impugned order. He pointed out that from 1st September 2008 to 11th November 2008 the petitioners had filed total six applications for grant of time to file the written statement. Though time was granted, the written statement was not filed. He, therefore, submitted that no interference is called for. 5. I have considered the submissions. In the application at Exhibit-69 it is stated that the mother of the petitioners was hospitalized and, therefore, the petitioners could not give instructions to their advocate. It must be noted here that the written statement was tendered by the petitioners along with the said application. It must be noted here that time for filing the written statement expired on 17th November 2008 and the present application was filed on 15th January 2009 by setting out the 3 reason of hospitalization of mother of the petitioners. This was the compelling reason why the petitioners could not file the written statement. Whether a case of existence of exceptional circumstances was made out or not depends upon facts and circumstances of each case. In the present case, it is brought on record that the written statement could not be filed due to hospitalization of the petitioners' mother. In the facts of the case, exceptional circumstances were set out in the application. Therefore, the application ought to have been allowed by the learned Trial Judge by directing the petitioners to pay costs. The suit has been filed on behalf of a public charitable trust. Considering all the aspects, the amount of costs is quantified at Rs.7,500/-. 6. Hence, I pass following order :- A) The impugned order dated 28th January 2009 is quashed and set aside and the application at Exhibit-69 is allowed subject to petitioners paying costs of Rs.7,500/- (Rs.Seven thousand five hundred only) to the first respondent. Payment of costs will be condition precedent; B) If the amount of costs is not deposited with the Trial Court within a period of six weeks from today, the impugned order will stand. If compliance is made within the time stipulated, the written statement shall be taken on record; C) The writ petition is allowed in the above terms. (A.S.OKA, J.)