1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4002 OF 2009 Dnyaneshwar Anandrao Lokhande .. Petitioner versus Narayan Anandrao Lokhande .. Respondent Mr.Ditendra Mishra for the petitioner. CORAM : A.S.OKA, J. DATE : 20th January 2010. P.C: . On 25th August 2009 when this writ petition came up before this Court, notice was issued to the 1st respondent for final disposal of the petition at admission stage. The office noting shows that the 1st respondent is duly served with the fresh notice in terms of order dated 25th August 2009. None appears for the 1st respondent. 2. The 1st respondent is the original plaintiff and the petitioner is the 1st defendant. The petitioner made an application at Exhibit 77 praying for setting aside order passed by the trial Court to proceed with the suit without written statement of the petitioner. By the impugned order the said application has been rejected. 3. After having heard the submissions of the learned counsel appearing for the petitioner, I find that a case was made out for permitting the petitioner to file written statement. The suit has been filed prior to 1st July 2002 and hence the same will not be governed by amended Rule 1 of Order VIII of the Code of Civil Procedure, 1908. An order has been passed on 14th July 1999 by the trial Court to proceed with the suit 2 without written statement. Initially, the suit was filed in the Court of the Civil Judge Senior Division at Pune which was transferred to the Court of Civil Judge Junior Division at Khed. Various reasons have been given by the petitioner in the application at Exhibit 77. He stated that from 1997 the petitioner was not maintaining good health and had to undergo a surgery. He stated that from the year 2000 to the year 2006 the petitioner was continuously bed-ridden and had to undergo a surgery in the year 2006. He stated that in December 2006, his wife was required to undergo a surgery. The case of the petitioner is that in August 2007 he was required to undergo an eye surgery and thereafter was advised to take rest for about three to four months. In the reply filed by the 1st respondent, the prayer made by the petitioner has been opposed. However, lastly it is submitted that in the event the prayer is granted, heavy costs may be awarded. The factual averments made in the application filed by the petitioner have not been specifically denied by the 1st respondent. This was a case where prayer made by the petitioner ought to have been allowed subject to payment of heavy costs. 4. Hence, I pass the following order: : O R D E R : (a) The impugned order is quashed and set aside. (b) The application made by the petitioner at Exhibit 77 is allowed subject to petitioner paying costs of Rs.5,000/- to the 1st respondent. The amount of costs be deposited with the trial Court within a period of eight weeks from today. (c) Payment of costs will be condition precedent. (A.S.OKA,J)