kbp 1 4659-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4659 OF 2009 Neeraj Jayant Kaneria and ors. ..Petitioners Vs. Namdev Shivram Kakare ..Respondent ......... Mr.S.R.Roghe, for petitioners. Ms.Jai V.Kanade, for respondent. ......... CORAM : A.S.OKA, J.. DATE : 15 th OCTOBER, 2009. P.C. : 1] Submissions of the learned counsel for the parties are heard on earlier date. 2] The petitioners who are the original defendants have filed this writ petition under Article 227 of the Constitution of India challenging the impugned order dated 7 th January, 2009 by which the applications made by the petitioners for taking their written statement on record have been rejected. Notice was issued for disposal of this petition at the stage of admission, and accordingly, parties have been heard. 3] The respondent is the original plaintiff who filed a suit for cancellation of kbp 2 4659-09.sxw sale deed etc. On 8 th February, 2008 summons was served. The first and second petitioners entered appearance on 20 th February, 2008. The rest of the petitioners entered appearance on 19 th March, 2008. On 28 th March, 2008 an application for grant of time to file written statement was made. There were further applications filed by the petitioners on 7 th April, 2008, 30 th April, 2008 and 10 th June, 2008. On the last application dated 10 th June, 2008 at exhibit 35, an order was passed by the trial court rejecting the said application. 4] On 14th July, 2008, The first and second petitioners moved an application exhibit 36 and rest of the petitioners also moved an application exhibit 38 for setting aside the order passed by the trial Court to proceed with the suit without written statement. The applications were contested by the respondents and by separate impugned orders the applications have been rejected. 5] Learned counsel for the petitioners in support of the writ petition pointed out that there were more than cogent reasons assigned in applications exhibits 36 and 38 explaining the delay in filing the written statement. He pointed out that an application at exhibit 35 made by the petitioners on 10 th June, 2008 for grant of time was rejected by the trial Court though sufficient reasons were assigned in the said application. He submitted that the trial court ought to have allowed the applications made by petitioners. 6] Learned counsel for the respondent submitted that there are no exceptional reasons set out in both the applications by the petitioners. It is also kbp 3 4659-09.sxw submitted that the reasons set out in these applications are very vague and petitioners no. 1 and 2 in their applications have not disclosed the details of the documents which were not available. As far as the rest of the defendants are concerned, she submitted that all relevant documents were always available to them, therefore, the grounds pleaded by them are false. 7] I have given careful consideration to the submissions. In the application made by the first and second petitioner it is stated that the relevant information could not be collected and the documents were not available for drafting the written statement. In the other application, it is contended that the relevant documents were not available and a receipt allegedly executed by the respondent could not be made available. 8] It must be stated here that the suit summons was served on 8 th February, 2008. The first and second petitioners entered appearance on 20 th February, 2008. The rest of the petitioners entered appearance on 19 th March, 2008. In March and April time was granted by the trial Court to them to file written statement. Lastly, time was granted on 30 th April, 2008. It will be necessary to consider what is set out in the application made by the petitioners at exhibit 35 on 10 th June, 2008. It is stated in the application by the Advocate for the petitioners that a draft of the written statement has been handed over to the petitioners for approval. The said application was filed by the advocate for the petitioners which came to be rejected on the ground that it was filed after expiry kbp 4 4659-09.sxw of period of 90 days. After the last adjournment granted on 30 th April, 2008, the summer vacation intervened and on reopening of the court on 10 th June, 2008 an application was made stating that the draft of the written statement was ready and it was handed over to the petitioners for approval. However, the said application was not allowed and the court proceeded to pass the order to proceed with the suit without written statement. Thus, aforesaid facts disclose that summons was served on 8 th February, 2008 and on 10 th June, 2008, written statement was kept ready by the advocate. This was certainly a very relevant circumstance. Without considering this aspect, by a cryptic order, the applications at Exhibit 36 and 38 have been rejected by mechanically observing that the reasons given in the applications cannot be termed as exceptional circumstances. In the normal course this court would have sent back the matter to the trial court for reconsideration of the applications. Result of such order would be that the suit filed by the respondent will be further delayed. Considering that there was a ground for setting aside the order, instead of sending back the matter to the trial court, the petitioners can be permitted to file the written statement subject to payment of costs. The amount of costs is quantified at Rs.10,000/-. The learned counsel for the petitioners has handed over a demand draft of Rs.10,000/- drawn in favour of the respondent to the counsel for the respondent. 9] Hence, the petition is disposed of by passing the following order:- kbp 5 4659-09.sxw (a) The impugned orders are quashed and set aside. (b) The applications made by the petitioners at exhibits 36 and 38 are hereby allowed . (c) The trial Court is directed to take the written statement of the petitioners on record. (d) As stated earlier, the amount of costs Rs.10,000/- is already paid to the respondent. (e) The writ petition is allowed on above terms. ( A.S.OKA, J. )