1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6067 of 2008 Baiduzaman Khan .. Petitioner versus Azim Beg & ors. .. Respondents ... Mr.V.K. Gupta i/b M/s.Gupta & Gupta for the petitioner. CORAM : A.M.KHANWILKAR, J DATED : 29th August 2008 P.C.: 1. Heard counsel for the parties. 2. The order which is impugned in this petition during the course of hearing of the petition has been stated to be at page 46 which reads thus:- . Heard the learned Adv. appearing on behalf of plaintiff and defendant no.1. . No rule, in support of 2 contention that a notice of motion is required to be taken out for filing W.S. at a belated stage, was brought to my notice. . Secondly roznama dt.3.10.07 goes to show that this court has observed that service is not proper. Inspite of that, the plaintiff has not effected service of summons, on the defendants and therefore in my view there is no delay in filing W.S. There is therefore no question of passing order of condonation of delay caused in filing w.s. . Application is allowed. W.S. is taken on record. It is read and recorded and marked Exhibit 13. 3. This order permits defendant no.1 to file written statement. The argument of the petitioner- plaintiff is that there was no sufficient cause for permitting the defendant no.1 to file written statement. This argument clearly overlooks the reason recorded by the court below for showing indulgence to defendant no.1. The trial court has relied on the noting made in roznama dated 3rd October 2007 which mentions that service on defendant no.1 is not proper. In other words, the petitioner- plaintiff was obliged to take steps to properly serve the defendant no.1. As the defendant no.1 was not properly served, the question of limition to file written statement having commenced does not arise. In other words, written statement tendered by defendant no.1 was well within time as has been 3 rightly observed by the trial court. Counsel for the petitioner would contend that the noting made in roznama dated 3rd October 2007 is incorrect. That order dated 3rd October 2007 has not been challenged and has been allowed to become final. Thus understood, there is no infirmity in the view taken by the court below in allowing the defendant no.1 to file his written statement. Hence, dismissed. (A.M.KHANWILKAR, J)