1 wp-1270.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1270 OF 2011 Sou Saraswati Gurushantayaa Swami ] Age 49 yrs. Occ­household ] r/a Mouje Bhandarkavathe ]... Petitioner Tal South Solapur, Dist. Solapur ] Org. Plaintiff. Versus 1 Smt.Sulbha Malappa Chinchole ] Age 52 yrs. Occ Houshold ] ] 2 Yashwant Malappa Chinchole ] Age 32 yrs. Occ­service ] ] 3 Jaywant Malappa Chinchole ] Age 30 yrs. Occ education ]... Respondents. ] Org. Defendants All are r/a 28[B}, Nirapam Society ] Vijapur Road, Solapur ] Mr. Shrishail Sakhare for the Petitioner. None for the Respondents. CORAM : R M SAVANT, J. DATE : 17th December 2011 ORAL JUDGMENT : 1 In the above Petition the notices came to the issued on 21/3/2011 and the parties were put to notice that the above Petition may be heard and disposed of finally at the admission stage. None appears for the Respondents though served. In view of the narrow controversy that is involved in the above Petition, this Court deems it fit to take up the Petition for final hearing at the admission stage. 2 wp-1270.11.sxw 2 Hence Rule, returnable forthwith. Heard the learned counsel for the Petitioner Shri Sakhare. 3 The above Petition takes exception to the order dated 30/04/2010 passed by the 10th Joint Civil Judge, Junior Division, Solapur by which order “No Written Statement Order” came to be set aside and the Defendants were permitted to file their written statement on payment of costs of Rs.1000/­ 4 Shron of unnecessary details, a few facts can be stated thus : The Petitioner herein is the original Plaintiff. He has filed Regular Civil Suit No.502 of 2008 for permanent injunction against the Respondents herein who are the Defendants to the said suit. It appears that pursuant to the summons served upon them, the Defendants appeared through their counsel in the said suit on 24/7/2008 but failed to file the written statement within the time prescribed by Order VIII Rule 1 of the Code of Civil Procedure. A “No Written Statement Order” came to be passed on 26/6/2009. Thereafter the Plaintiff has filed his affidavit in lieu of Examination­in­Chief and in view of the persistent absence of the Defendants in the said suit, “No Cross Order” came to the passed against them on 31/7/2009. Thereafter, the Defendants filed the Application­Exhibit 20 for setting aside the “No Cross Order” on 23/3/2010 which came to be rejected by the trial Court. The Defendants on 17/4/2010 filed the instant Application Exhibit 25. The ground made therein was that one 3 wp-1270.11.sxw of the Defendants was a Government servant, who was busy in the duty connected with Lok Sabha and State Legislative Assembly Elections. It was further stated that the dispute between the Plaintiff and the Defendants was referred to Village Dispute Redressal Committee before whom the Plaintiff had agreed for re­conveyance of the suit land by executing a sale deed in favour of the Defendants. Relying upon the said assurance it is the case of the Defendants that they were waiting for the Plaintiff to re­convey the said property which has resulted in them not filing the written statement in time. 5 The said application was opposed by the Plaintiff i.e. the Petitioner herein by filing his reply. The Petitioner pointed out the manner in which the Defendants were prosecuting the suit. The Plaintiff has averred as regards the “No Cross Order” passed against the Defendants as also the rejection of the Application Exhibit 20 for stay of the suit. 6 The said Application Exhibit 25 was considered by the trial Court and by the impugned order the “No Written Statement Order” has been set aside. In allowing the said Application, significantly the trial Court has not adverted to the grounds set out in the application on the basis of which the setting aside of the “No Written Statement Order” was sought. However, as can be seen, the trial Court has dwelled into the merits of the case of the Defendants, and by stating that the suit involves immovable property, and prejudice would be caused to the Defendants, it they are not allowed to file 4 wp-1270.11.sxw their Written Statement has set aside the “No Written Statement Order”. It is trite that though Order VIII Rule 1 of the Code of Civil Procedure is held to be directory and not mandatory. It is only for just, sufficient and exceptional reason that the time to file written statement can be extended by the Court. 7 The impugned order as can be seen has been passed without the trial Court satisfying itself that the grounds mentioned in the said Application were just and exceptional and that the circumstances were beyond the control of the Defendants. In my view, therefore, the interest of justice would be served if the impugned order is set aside and the matter is remanded back to the trial Court for de­novo consideration of the Application­Exhibit­25. In view of the fact that the Defendants have not clarified as to in what capacity one of the Defendants was working and now he was busy with the Lok Sabha and the Legislative Assembly Election. The said Defendant would have to clarify the said position. The trial Court would therefore have to decide the said Application Exhibit 25 on the touchstone of the well settled principles laid down by the Apex Court as well as this Court in the matter of extension of time for filing of the written statement. 8 Parties to appear before the trial Court on 23/1/2012 at 3.00 pm. The Petitioner/Plaintiff to serve a copy of this order on the Respondents by 10/01/2012. The trial Court thereafter to proceed to decide the said Application­Exhibit 25 by 28/2/2011 in accordance with law uninfluenced by 5 wp-1270.11.sxw the earlier observations as well as the observations made in the instant order. Rule is accordingly made absolute with no order as to costs. The above Writ Petition is accordingly disposed of. [R.M.SAVANT, J]