1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 9409 OF 2010 Aurangabad Municipal Corporation Aurangabad through its Commissioner. .. PETITIONER VERSUS 1 Smt. Gayabai w/o Late Barkuji Ambhore age 60 years, occ. household r/o S.T. Colony, N­2,CIDCO Aurangabad through her GPA Avinash s/o Barkuji Ambhore age 42 years, occ. business r/o N­2, S.T. Colony Mukundwadi, Aurangabad. 2 Special Land Acquisition Officer Special Unit, Behind Mayur Bunglow Railway Station Road, Aurangabad. .. RESPONDENTS Mrs. Manjusha Deshpande, advocate for the petitioner. Mr. S.D. Karkare, advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 8 th OCTOBER, 2010. ORAL JUDGMENT : 1 Heard. 2 Rule. Rule made returnable forthwith. With the consent of the parties, 2 the petition is taken up for final disposal at admission stage. 3 Order passed by the Civil Judge, Sr.Dn., Aurangabad on 23­6­2010 below exh. 51 in Regular Civil Suit no. 1435/2000 refusing permission to the defendant to present written statement is subject matter of challenge in this petition. 4 It appears that the suit is presented by the plaintiff being Regular Civil Suit no. 1435/2000 claiming decree of perpetual injunction, mandatory injunction and possession against the Municipal Corporation / petitioner herein and the Special Land Acquisition Officer. It is not controverted that during continuance of the suit, initially, written statement was not presented by the petitioner / original defendant and the suit proceeded ex­parte against the Corporation. Suit was dismissed on 19­6­2002. Appeal was presented by the plaintiff being Regular Civil Appeal no. 112/2007. First appellate court remitted the matter back to the trial court. While remanding the matter back, the first appellate court granted liberty to defendant to present application seeking permission to file written statement within 15 days from 15­10­2009 and the trial court was directed to consider such an application on its own merits. Defendant / petitioner herein caused 3 appearance before the trial court on 15­10­2009 and presented application seeking further time to present written statement. It was contended before the trial court that certain documents on which reliance is required to be placed had find place in the original record which is still with the first appellate court. It was urged that time be granted until receipt of the record so as to enable the petitioner / original defendant to prepare written statement. It appears that the trial court thought it fit to call for record. There also appears endorsement on the application by the trial court dt. 9­4­2010 granting time to the defendant upto 21­10­2010. Trial court overlooked this order while considering the application presented by original defendant on 21­4­2010 to take on record written statement tendered alongwith the application, observed that there is already ‘No WS’ order passed by the trial court. It is also further observed in the order that inspite of granting time till 15­10­2009 for presentation of written statement, the defendant has failed to place the written statement on record. It is also observed by the trial court that the intention of the defendant appears to be to prolong the matter. As such, trial court proceeded to reject the application tendered by the petitioner seeking permission to present on record written statement. 4 5 I have perused the application as well as impugned order passed by the trial court. It transpires that while remitting the matter back to the trial court, the first appellate court granted liberty to the defendant to tender application seeking permission to present the written statement on record and the trial court was directed to consider such application. Defendant was supposed to appear before the court on 15­10­2009 and take steps in respect of presentation of written statement. However, it appears that for want of record and proceeding, an application was tendered to the court for granting further time. It also appears that trial court has granted time till 21­10­2010 in view of endorsement made on the application on 19­4­2010. In these circumstances, it would be appropriate for the trial court to extend opportunity to the defendant to present on record written statement and proceed to decide the suit on its own merits. Subject matter of the dispute is entitlement to the immovable property and in all fairness, appropriate opportunity needs to be extended to the defendant to contest the suit on merits. It also cannot be lost sight of that the suit presented by the plaintiff was dismissed in the year 2009 and the matter came to be remitted back only in the year 2009. In these circumstances, blame cannot be put on the defendant for causing delay. For any inconvenience caused to the plaintiff, same can be directed to be compensated by the defendant by paying 5 cost. 6 Considering the facts and circumstances of the case, I am of the opinion that the defendant has made out a case for causing interference in the impugned order. However, for the inconvenience caused to the plaintiff, defendant is required to compensate them by paying cost. Writ petition therefore stands allowed. Order passed by the Civil Judge, Sr.Dn., Aurangabad on 23­6­2010 in Regular Civil Suit no. 1435/2000 is quashed and set aside and the application exh. 51 tendered by the defendant shall be deemed to have been allowed, however, subject to payment of cost of Rs. 5,000/­ payable by the defendant to the plaintiff within a period of four weeks from today. In the event of failure to deposit or pay the cost as directed, the order passed in the instant writ petition shall be deemed to have been withdrawn. Rule is accordingly made absolute. 7 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp9409.10.odt