1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 493 OF 2007 APPEAL FROM ORDER NO. 493 OF 2007 APPEAL FROM ORDER NO. 493 OF 2007 WITH CIVIL APPLN. NO. 682 OF 2007 IN NOTICE OF MOTION NO. 3125 OF 2006 IN BCCC SUIT NO. 2263 OF 2002 Ashok Raghunath Rokade ... Appellant (Orig. deft. No.1) Vs. Vraj Giriraj Co-op.Hsg.Soc.Ltd. & Anr. Resopndents Mr.Omprakash Parihar, Advocate, for the appellant. Mr.R.D.Dave, Advocate, i/b. N.N.Vaishnawa & Co.,Advocates for the resopndent. No.1. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 12th February, 2008. DATE : 12th February, 2008. DATE : 12th February, 2008. P.C. P.C. P.C. 1. This Appeal is against the order allowing the application under Order IX Rule 13 of C.P.C. setting 2 aside the dismissal of the suit. 2. The learned Counsel for the respondent rightly points out that the Appeal is not tenable under Order XLIII C.P.C. The Appeal would be tenable only when such application would have been rejected and not otherwise. In view of this legal position, the learned Counsel for the appellant does not press the Appeal and makes a request that the appellant/defendant no.1 may be allowed to file written statement. He contends that due to failure to file written statement, no W.S. order was passed. That order was maintained by the High Court also. However, thereafter, the suit was pending for a long time for ex-parte evidence and then the suit came to be dismissed in default. Later on, the suit was restored to the file on application under Order IX Rule 13 of C.P.C. by the plaintiff. He contends that when the matter is proceeded ex-parte, he may be allowed to file written statement and no harm will be caused particularly when the suit is pending for the last six years without any fault on the part of the defendant. 3. Taking into consideration the circumstances, the applicant is allowed to move fresh application for filing the written statement before the trial Court and 3 the trial Court may consider the request in view of the above circumstances. 4. The Appeal stands disposed of with the aforesaid directions. 5. As the Appeal itself is disposed of, the C.A. does not survive and stands disposed of. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)