1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1201 OF 2009 Bandu Shankar Dagde & Ors. .. Petitioners versus Santosh Dnaynoba Dagde & Ors. .. Respondents Mr.D.C.Pathak for the petitioners. Mr.Atul Kore i/by Mr.Milind Deshmukh for the respondent No.1. CORAM : A.S.OKA, J. DATE : 5th October 2009. P.C: . The parties were put to notice that the writ petition will be finally decided. The submissions of the learned counsel appearing for the parties were heard on the earlier date. By this writ petition under Article 227 of the Constitution of India, the petitioners who are the original defendant Nos.1 to 5 have challenged the order dated 18th December 2007 passed by the trial Court below application at Exhibit 60. The 1st respondent is the original plaintiff who filed a suit for partition and separate possession against the petitioners and others. In the said suit, the trial Court passed an order directing that the suit will proceed without written statement. An application was made for setting aside the said order (Exhibit 60) which has been rejected by the impugned order. 2 2. The learned counsel appearing for the petitioners submitted that the written statement was in fact tendered alongwith application at Exhibit 50 and in view of averments made in the application a case was made out for taking the written statement on record. The learned counsel appearing for the 1st respondent opposed the petition by submitting that there is absolutely no explanation for gross delay in filing written statement and therefore, the trial Court was justified in rejecting the prayer. 3. I have given careful consideration to the submissions. The trial Court has noted that the 2nd to 5th petitioners appeared in the suit on 27th April 2007. The 1st petitioner appeared on 19th June 2007. It must be stated here that the application at Exhibit 60 was filed on 21st November 2007. As stated earlier, the suit is for general partition relating to an immovable property. In the suit the 1st respondent has relied upon revenue record. The ground on which relaxation of time was sought by Exhibit 60 was that the petitioners could not collect all the documents for the purposes of drafting the written statement. It is pertinent to note that order to proceed without written statement was passed on 18th September 2007 and within two months of the said order, the application at Exhibit 60 was filed. Looking to the nature of the suit, the trial Court ought to have accepted the case made out by the petitioners that they could not collect all the documents in time. In view of the said ground and the fact that written statement was tendered alongwith the application, the trial Court ought to have allowed the said application 3 while directing payment of substantial costs to the 1st respondent. 4. Hence, the petition must succeed and I pass the following order: : O R D E R : (a) The impugned order dated 18th December 2007 is quashed and set aside and application at Exhibit 60 is allowed subject to the petitioners paying costs of Rs.7,500/- to the 1st respondent. The amount shall be paid within six weeks from today. (b) Payment of costs will be condition precedent if the amount of costs is not paid or is not deposited with the trial Court within the stipulated time, the impugned order will stand. (c) Petition is allowed on above terms. (A.S.OKA,J)