IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2373 OF 2009 Shri Dnyanoba Laxman Kad & Anr. ...Petitioners V/s. Shri Baburao Laxman Kad & Ors. ...Respondents ...... Mr.Ashok B.Tajane for Petitioners. Mr.Vilas B.Tapkir for Respondents 1 & 2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 12, 2009. MARCH 12, 2009. MARCH 12, 2009. P.C. 1. Heard Counsel for the parties. 2. This Writ Petition takes exception to the order passed by the Trial Court rejecting Petitioners’ application for setting aside no written statement order dated 16th June 2008. The Court below has found as of fact that no exceptional circumstance has been established by the Defendant to show indulgence so as to recall the no written statement order or to permit him to : 2 : file written statement beyond the statutory period of 90 days. To counter this finding, Counsel for the Petitioners invited my attention to the Application where it is mentioned that the Defendant was unwell as a result of which could not instruct his Advocate. There are two aspects which are glossed over by the Petitioners in this submission. Firstly, the fact that the Petitioner was unwell as asserted by him in the Application has been categorically challenged and denied by the Respondents in the reply. The falsity of the stand taken by the Petitioner has been specifically put in issue. The Petitioner has not bothered to substantiate his stand that he in fact was so unwell that prevented him in filing the written statement. No such evidence is forthcoming. Obviously, that was not the argument which was canvassed before the lower Court. Besides, there is no explanation offered either in the application or before this Court as to what prevented the Petitioner from appearing before the Court on 25th April 2008. The Court below has noted that after service of the summons on 22nd January 2008, the Petitioner appeared before the Court on 6th : 3 : February 2008. The matter was adjourned from time to time including on 18th March 2008, 25th April 2008 and again on 16th June 2008, when eventually no written statement order came to be passed. The Petitioner has not given any explanation as to what prevented the Petitioner to appear before the Court after 6th February 2008, in particular, on 25th April 2008 or 16th June 2008. 3. Taking any view of the matter, no interference in exercise of writ jurisdiction is warranted. Counsel for the Petitioner, however, relies on the exposition of our High Court in the case of Bhanusing Vishnu Patil & Ors. v. Vishwas Bhanusing Vishnu Patil & Ors. v. Vishwas Bhanusing Vishnu Patil & Ors. v. Vishwas Arjun Patil reported in 2008 (3) Bom.C.R. 686 Arjun Patil reported in 2008 (3) Bom.C.R. 686 Arjun Patil reported in 2008 (3) Bom.C.R. 686. The observations in the said decision have been made on the basis of facts of that case. The Court has noted that the Defendants were required to travel to Surat hundreds of miles away from Court and that they were stuck up at that place due to heavy rains and that Defendant Nos.1 and 2 became sick and Defendant No.3 was engrossed in attending them. Those circumstances obviously led this Court to hold that it was an exceptional circumstance. : 4 : Accordingly, no fault can be found with the view taken by the Court below in rejecting the Application taken out by the Petitioner in the fact situation of the present case. Hence, dismissed. A.M.KHANWILKAR, J.