SCA/2120/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2120 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= LILABEN @ MAYABEN KARSANBHAI SOLANKI - Petitioner(s) Versus VRAJLAL LAVJIBHAI RATHOD - Respondent(s) ========================================================= Appearance : MR JA ADESHRA for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 MR SUNIL S JOSHI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/08/2008 ORAL JUDGMENT 1. RULE. Mr.Sunil S.Joshi, learned advocate waives the service of notice of admission on behalf of the respondent. SCA/2120/2008 2/4 JUDGMENT 2. With the consent of the learned advocate appearing on behalf of the respective parties, the matter is taken up for final hearing. 3. By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant have prayed for appropriate writ, order and/or directions, for quashing and setting aside the order dtd.5/9/2006 passed by the learned Principal Senior Civil Judge, Rajkot below application Ex.15 in Regular Civil Suit No. 234 of 2003, by which the learned Judge has dismissed the application submitted by the petitioners to permit them to file Written Statement. 4. It appears that Regular Civil Suit No.234 of 2003 came to be filed by the original plaintiff - respondent herein against the petitioners – original defendants in the court of learned Civil Judge, Senior Division, Rajkot on 11/6/2003 and the defendants came to be served with the summons on 17/6/2003 and they appeared through advocate and prayed for time to file written statement on 4/7/2003. On 4/7/2003, time was granted and the matter was adjourned to 5/8/2003 and on 5/8/2003, the learned advocate appearing on behalf of the defendants prayed for time to file written statement which was granted and SCA/2120/2008 3/4 JUDGMENT the matter was adjourned to 17/9/2003. The learned advocate appearing on behalf of the petitioners filed application Ex.11 on 17/9/2003 requesting for further time to file written statement, however, vide order dtd.17/9/2003, the said application came to be rejected and the learned trial court passed order to close the stage of filing Written Statement by the petitioners – original defendants. Looking to the fact that there was delay of only 2 months and 13 days in filing written statement and even at the relevant time, the matter had not proceeded further, the learned trial court, ought to have allowed the petitioners to submit the written statement. 5. At this stage, Mr.Sunil Joshi, learned advocate appearing on behalf of the respondent – original plaintiff has submitted that thereafter during the interregnum period, the trial court has already framed issues and the plaintiff has already submitted Examination-in-chief by way of affidavit. It is submitted that in view of written statement, the issues might be required to be re-framed and the Examination-in-chief on affidavit is to be amended and that liberty be granted. 6. For the reasons stated above, the petition succeeds. The SCA/2120/2008 4/4 JUDGMENT impugned order dtd.5/9/2006 passed by the learned Principal Senior Civil Judge, Rajkot below application Ex.15 in Regular Civil Suit No. 234 of 2003, rejecting the application submitted by the petitioners – original defendants to submit the written statement is hereby quashed and set aside and the petitioners – original defendants are permitted to file written statement within four weeks from today. On submissions of such written statement, it will be open for the trial court to re-frame the issues accordingly and it will also be open for the respondent – original plaintiff to file further Examination- in-chief by way of affidavit on the basis of the re-framed issues and the written statement. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik