1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2768 OF 2009 ... 1. Bablusingh @ Jagbeersingh s/o Harisingh Shahu, age 45 yrs, occ. Business R/o Badpura, Nanded. 2- Sonu s/o Kamalsingh Shahu age 22 yrs, occ. Education, R/o Badpura, Nanded. 3- Rupsingh s/o Santoshsingh Chavan, age 30 yrs, occ. Business, R/o Mata Gujari Market, Near Hingoli Square, Nanded. 4- Namdeo s/o Narayanrao Chiklikar-Gaikwad, age 35 yrs, Occ. Agri, r/o c/o Bablusingh @ Jagbeersingh s/o Harisingh Shahu, r/o Badpura, Nanded. ...PETITIONER (Ori. Defendants.) V E R S U S Darbarsingh s/o Premsingh Langari, age 62 yrs, Occ. Business, r/o near Ashwini Apartment, Banda Ghat Road, Nanded. ..RESPONDENTS. (ori. plaintiff) Shri. V.M.Kagne,Advocate for the petitioner. Shri. M.V. Deshpande, Advocate for the respondent. CORAM : B.R. GAVAI, J : DATE : 9th JULY, 2009 PER COURT :- 1. Rule. Rule made returnable forthwith. Heard by consent. 2- By way of present petition, the petitioner challenges the order 2 dated 25.03.2009 vide which an application filed by the present petition for setting aside ‘No W.S. Order” and for taking written statement on record, was rejected. 3- Shri V.M. Kagne, the learned counsel appearing on behalf of the petitioner submits that the learned trial court has grossly erred in rejecting the application. He submits that due to the bonafide error committed by the petitioner written statement could not be filed within the stipulated period. He submits that the learned trial court ought to have allowed application taking into consideration the facts of the case. 4- Shri M.V. Deshpande, the learned counsel appearing on behalf of the plaintiff has vehemently opposed the petition. He submits that the petitioner have been throughout negligent in the suit and as such no interference is warranted. 5- From the perusal of the record, it is clearly seen that the petitioner had earlier filed say, however, according to the petitioner when say was filed W. S. was written there and then by over writing on it by ink, it was corrected and written as ‘Say’. It can thus be seen that the petitioner was under a bonafide mistake and belief that when say was filed, written statement was filed. 6- No doubt, that, a defendant is required to file written statement initially within a period of 30 days and thereafter for reasons which are found to be satisfactory within a period of 90 days. However, said requirement has been held to be directory and if the defendant makes out a case, a written 3 statement could be permitted to be placed on record, even after a period of 90 days. 7- I find that it would be in the interest of justice if the parties are allowed to contest the matter on merits, instead of foreclosing the doors of justice on technical ground. In so far as prejudice caused to the plaintiff- respondent is concerned, same can be compensated by imposing costs. The impugned order is therefore quashed and set aside. The application filed by the present petitioner for setting aside ‘No W.S’ order and for permission to place written statement on record is allowed subject to the costs which are quantified at Rs.1,000/-. The costs be deposited in the trial Court within a period of four weeks from today. Deposit of costs is a pre-condition for allowing the application filed by the present petitioner. On deposit of costs, the respondent-plaintiff would be at liberty to withdraw the same. Needless to state, that on failure to deposit the costs, the petition would stand dismissed automatically. 8- ٌRule is thus made absolute in the aforesaid terms and conditions. ( B. R. GAVAI ) JUDGE ..... aaa/wp2768.09.odt