1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2418 OF 2007 Shri Harishchandra Mahapati Kurkute. ..Petitioner. V/s. Shri Maruti Dhondiba Dhobale. ..Respondent. Mr.D.M.Gupte for Petitioner. Ms.Jai Mhaskar a/w.A.B.Tajane for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Ms.Mhaskar waives notice for Respondent. 4. As short question is involved, Petition is taken up for final hearing forthwith by consent. 5. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order dated 19th October, 2005 passed by the Second Additional Judge, Small Causes Court, Pune below Exh. 24 in Civil Suit No.612 of 2001. By the 2 said Application, the Petitioner requested the Trial Court to condone the delay in filing Written Statement and to take the Written Statement already filed on record. The said request has been rejected on the finding that no exceptional circumstance has been made out. The principle governing the proceedings covered by the amended provisions of CPC has been applied by the lower Court, inspite of the fact that the suit pertains to anterior period. By now it is well established that the amended provisions of CPC have no retrospective application. Therefore, the Court below ought to have considered the request of the Petitioner on the touch stone of sufficient cause and not exceptional circumstance, which has been invoked by the Trial Court. Keeping this in mind and having regard to the admitted fact that after the summons was served, the Petitioner’s advocate made appearance on 30th August, 2001 before the trial Court. The matter was adjourned from time to time including at his request to file Written Statement. Eventually the Court passed "no written statement" order on 19th July, 2002. The Petitioner unaware of the said order filed his Written Statement before the Trial Court on 9th September, 2002. The fact that such Written Statement has been filed in the Trial Court is not in dispute at all. However, the Petitioner failed to file formal application for 3 recall of "no Written Statement" order dated 19th July, 2002 and to take the Written Statement on record. That lapse was noticed in September, 2005 when the Petitioner was advised to file formal application on 21st September, 2005 Exh.24. It is not a case that for the first time Written Statement has been presented or kept ready for filing in September, 2005. Obviously non-filing of the formal application alongwith Written Statement on 9th September, 2002 is the mistake of the advocate appearing for the Petitioner before the lower Court who ought to have advised the Petitioner in that behalf. That however, does not absolve the Petitioner of not filing Written Statement prior to 19th July, 2002. However, the case of the Petitioner is that the Application for further time to file Written Statement was filed by the Petitioner by way of indulgence and as last opportunity. At the same time, on 9th July, 2002, the Trial Court not only rejected the said application of the Petitioner for adjournment but also passed "no written statement" order. 6. Taking over all view of the matter and having regard to the fact that the Petitioner is a poor agriculturist residing in the Taluka place, 20 kms. away from Pune and is physically handicapped having 4 permanent disability, in the interest of justice, this Petition succeeds on condition that the amount already deposited by the Petitioner in this Court and further amount of Rs.2,500/- be made over to the Respondent. Further amount of Rs.2,500/- be deposited by the Petitioner in the Trial Court within three weeks from today, failing which the Trial Court may proceed on the basis that the order dated 19th October, 2005, which is impugned in this Petition is revived. 7. If the above condition is complied with, Written Statement already filed before the Trial Court be taken on record. 8. It will be open to the Respondent/Plaintiff to request the Trial Court to permit producing of further evidence in the context of the stand taken by the Petitioner in the Written Statement. Such request will have to be decided on its own merit in accordance with the law. The Trial Court however, shall keep in mind that the suit will have to be proceeded expeditiously thereafter as the Respondent/Plaintiff is senior citizen. The suit pertains to year 2001. The Trial Court may finally dispose of the suit by end of January, 2010. 5 . Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)