1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6930 OF 2009 1 Sangita w/o Babaraje @ Babasaheb Bibawe, age: 32 years, Occ: Agriculture; 2 Vaibhav s/o Babaraje @ Babasaheb Bibawe, age: 08 years, Occ: Education; 3 Prasad s/o Babaraje @ Babasaheb Bibawe, age: 8 years, Occ: Education; 4 Ku.Sheetal d/o Babaraje @ Babasaheb Bibawe, age: 10 years, Occ: Education; Nos.2 to 4 minors through their natural guardian mother i.e. Petitioner no.1. All R/o Wadapur, Tq. Sangamner, District Ahmednagar. Petitioners Versus 1 Sow.Sheela w/o Balasaheb Gawali, age: 37 years, Occ: Agri., R/o Madhi, Tq. Kopargaon, District Ahmednagar. 2 Rabhaji Nabhaji Bibawe, age: 67 years, Occ: Agri., 3 Sow. Anusuyabai w/o Rabhaji Bibawe, age: 62 years, Occ: Agri., Nos.2 and 3 R/o Nimaj, Tq.Sangamner, District Ahmednagar. Respondents Mr.S.K.Shinde, advocate for the petitioner. 2 Mr.R.L.Kute, advocate for Respondent No.1. Respondents No.2 and 3 served. CORAM: R.M.BORDE, J. DATE : 26th April, 2010. ORAL JUDGMENT: 1 Heard Shri S.K.Shinde, learned Counsel for petitioner and Shri R.L.Kute, learned Counsel for Respondent No.1. Respondents No.2 and 3, though served, are absent. Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The order dated 25.08.2009, passed by Joint Civil Judge, Junior Division, Sangamner, below Exhibit-36 in Regular Civil Suit No.170/2007, is subjected to challenge in this petition. 3 Petitioners are original defendants no.3 to 6 in a suit presented by Respondent No.1 – original plaintiff, being Regular Civil Suit No.170/2007 claiming decree of partition and possession of ancestral property. It is needless to go into factual aspects of the matter. Suffice it to say that suit presented by plaintiff claiming decree of partition against petitioners herein and other defendants is pending for adjudication before the trial Court. The property in question is in possession of original defendants no.1 to 6. Defendant no.1 is father of plaintiff, whereas, defendant no.2 is her mother. Defendant no.6 is the wife of deceased brother of plaintiff. After presentation of plaint, in spite of causing their appearance, defendants no.3 to 6 did not file written statement and as such trial Court was constrained to 3 pass order of `no written statement’ on 01.09.2007. Defendants no.3 to 6 presented an application on 01.12.2007 requesting the Court to recall order of no written statement. The application was allowed by trial Court on 24.11.2008 subject to payment of cost of Rs.300/-. Defendants no.3 to 6 were supposed to deposit cost within time stipulated in the order, however, they failed to comply with the same. An application was thereafter presented by defendants no.3 to 6 – petitioners herein requesting the Court to grant some more time to deposit amount of cost. However, trial Court, rejected said application in view of order dated 09.03.2009. Defendant No.6 again filed an application on 25.08.2009 on behalf of other defendants requesting the Court to allow the defendants to deposit amount of cost and permit them to tender written statement. The ground stated in the application is that defendant no.6, who is prosecuting the litigation on behalf of other defendants, is not aware about the procedural aspects of the matter. The application tendered at Exhibit-36 came to be turned down by the trial Court in view of order passed on 25.08.2009 and said order passed by trial Court refusing petitioners to deposit amount towards cost and to accept the written statement sought to be tendered along with application is subjected to challenge in this petition. 4 Learned Counsel appearing for Respondent No.1 – original plaintiff has vehemently opposed the request made by petitioners for grant of indulgence. It is vehemently contended that defendants are trying to prolong the proceedings on one pretext or other. The disputed property is in possession of defendants and plaintiff, being daughter of defendant no.1, is entitled to have share in the property. It is further contended that in spite of grant of several chances, defendants have intentionally avoided to deposit paltry amount payable towards cost and after lapse of about two years from 4 the date of presentation of suit, defendants are requesting the Court to allow them to deposit amount of cost and to accept the written statement. It is further contended that plaintiff is a lady and is entitled to have share in the disputed property. The contention raised by defendant no.6, that she is widow and as such compassionate approach needs to be taken, deserves no consideration for the reason that disputed property is possessed by defendant no.6. 5 Considering the contentions raised by learned Counsel for respective parties, I deem it appropriate to extend furthermore opportunity to the petitioners – original defendants no.3 to 6 to place on record their written statement, however, subject to payment of cost. I am of the opinion that pending suit shall be decided by the trial Court on its own merits. It also cannot be lost site of that in spite of grant of several chances, defendants no. 3 to 6 failed to deposit paltry sum of Rs.300/- towards cost payable to the plaintiff. However, non fulfillment of condition in respect of deposit of cost, valuable right of tendering defence vested in the defendants need not be taken away. The inconvenience caused to the plaintiff can be compensated by directing defendants to pay further cost. In the circumstances, I am of the opinion that orders impugned in this petition, passed by trial Court on 01.09.2007, 24.11.2008, 09.03.2009 and 25.08.2009, are required to be quashed and set aside. 6 In the result, impugned orders passed by trial Court, as stated above, are quashed and set aside. The trial Court shall accept written statement sought to be tendered by defendants no.3 to 6 on record subject to fulfillment of precondition in respect of deposit of cost. In the circumstances enumerated above, petitioners – original defendants no.3 to 6 5 are directed to deposit cost of Rs.5000/- (Rs.Five thousand) before trial Court, payable to the plaintiff, within a period of six weeks from today. On deposit of amount of cost by defendants no.3 to 6, original plaintiff shall be entitled to withdraw same. Considering long pendency of the matter, trial Court is directed to dispose of the suit as expeditiously as possible, preferably by the end of December 2010. In the event of non fulfillment of condition in respect of deposit of cost, this writ petition shall be deemed to have been dismissed without reference to the Court. 7 Rule is accordingly made absolute. (R.M.BORDE) JUDGE ******* adb/wp693009