1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7123 OF 2009 ALONGWITH WRIT PETITION NO. 7124 OF 2009 ALONGWITH WRIT PETITION NO. 7126 OF 2009 ALONGWITH WRIT PETITION NO.7127 OF 2009 ALONGWITH WRIT PETITION NO.7128 OF 2009 1. Jayshree Dineshchandra Joshi, ] Age – Adult, Occu.-Household, ] Residing at Sardar Chowk, ] Post – Navapur, District – Nandurbar. ] ] 2. Manoj Arvind Vaidya, ] Age 37 years, Occu.-Business & Agri., ] Residing at 212B Meghdoot Shopping ].... Petitioners Centre, Shivaji Road, Nashik. ] in all Petitions ] 3. Suhas Arvind Vaidya, ] Age – 29 years, Occu.-Business and ] Agriculture, ] Residing at House No.1780, ] Old Tambat Lane, Nashik. ] Versus 1. Vasantrao Dagaji Patil, ] (Since deceased through his LR’s) ] (a) Smt.Dwarkabai Vasantrao Patil, ] Age – 69 years. ] 2 ] (b) Dr.Sanjay Vasantrao Patil, ] Age - 50 years, ] ] (c) Sameer Vasantrao Patil, ] Age – 40 years. ] ] (d) Kumudini Kalyanrao Bhosale, ] .. Respondents Age – 45 years. ] (e) Anuradha Shamkant Marathe, ] Age – 39 years. ] Nos. 1(a) to (c) and (e) Residing ] at Satana, Taluka-Baglan, ] District Nashik. ] No.1(d) residing at G-24, ] Near Savedi Telephone Exchange, ] Ahmednagar. ] ] 2. Suresh Ramchandra Lala ] Age – Adult, Occupation-Business, ] Residing at H.M.United Builders, ] Kulkarni Colony, Sharanpur Road, ] Nashik. ] Mr.S.S.Kulkarni for the Petitioners in all the Petitions. Mr.S.G.Deshmukh i/b. Mr.A.R.Kapadnis for Respondent Nos.1 (a) to 1(e) in all the Petitions. CORAM : A.S. OKA, J. DATE : 16 th OCTOBER, 2009 ORAL JUDGMENT :- 3 Considering the narrow controversy involved, by order dated 23rd September, 2009, these Petitions were ordered to be heard finally at the stage of admission. I have taken up these writ petitions for final disposal. These petitions have been filed by the original Defendant Nos. 1 to 3 in suits filed by first Respondent. Suits have been filed by the first Respondent for specific performance for agreements for sale for immovable property. On 1st July, 2009, the Petitioners made application in the said suits praying for setting aside the order passed by the Trial Court to proceed with the suits ex-parte. The said applications have been dismissed by the Trial Court by the impugned orders. 2. The learned counsel appearing for the Petitioners submitted that apart from the fact that reasons were set out in these applications for not filing written statement earlier, the Petitioners can always apply for setting aside the order passed by the Trial Court to proceed with the suits ex-parte. He submitted that the Trial Court has a power under Rule 7 of Order 4 IX to set aside the order to proceed with the suits ex-parte and once such order is set aside, the Petitioners will get a right to file written statement. He submitted that the applications on which impugned orders have been passed were otherwise maintainable under Rule 7 of Order IX of the Code of Civil Procedure, 1908 (hereinafter referred as the said Code). The learned counsel appearing for the original Plaintiffs pointed out that the applications will be governed by Rule 1 of Order VIII of the said Code and therefore, the provision of Rule 1 of order VIII of filing written statement within the outer limit provided thereunder will apply. He submitted that the summons was served to the present Petitioners way back in the year 2004 and in the Application there is absolutely no reference to the service of summons and there was no explanation for long delay of about five years. He, therefore, submitted that in absence of exceptional circumstances, the Trial Court was justified in rejecting the applications. The learned counsel appearing for the Petitioners without prejudice to the rights and contentions of the Petitioners submitted that the applications on which impugned 5 order has been passed were filed as per the legal advice received and therefore, the Petitioners may be permitted to withdraw the said applications with liberty to file fresh applications containing the detailed reasons for delay in filing the written statement. The learned counsel appearing for the first Respondent submitted that if this Court is inclined to grant permission to withdraw the applications with liberty to file a fresh applications, the first Respondent will suffer prejudice in as much as the suits of the year 2003 will be delayed further. He submitted that this Court may pass appropriate orders so that the suit are not delayed. The learned counsel appearing for the Petitioners stated that the Petitioners are ready to pay costs of Rs.15,000/- in each Petition. 3. I have carefully considered the submissions. It must be noted here that the time for filing written statement is prescribed by Rule 1 of Order VIII of the said Code, and therefore, unless a case is made out for extension of time in terms of the law laid down by the Apex Court, time to file the 6 written statement cannot be extended by taking recourse to Rule 8 Order IX of the said Code. In a given case even if the written statement is not filed by a Defendant, he is not precluded from cross-examining Plaintiffs and his witnesses for establishing that the case made out by the Plaintiffs is false or that the Plaintiffs are not entitled to any relief. If the Court passes an order to proceed with the suit ex-parte, the said order is passed under clause (a) of sub Rule 1 of Rule 6 of Order IX of the said Code. The effect of exercising of power under Rule 7 of Order IX of the said Code is that the order to proceed ex-parte is set aside and the Defendant gets a right to participate in the hearing of the suit by cross-examining the witnesses examined by the Plaintiffs. By setting aside ex-parte order in exercise of powers under Rule 7 of Order IX of the said Code, the Defendant does not get an opportunity to file written statement, if by that time the period fixed under Rule 1 of Order VIII already over. Hence, the legal submission made by the learned counsel appearing for the Petitioners cannot be accepted and the same deserves to be rejected. 7 4. It is true that in view of the law laid down by the Apex Court in case of a suit which is governed by amended Rule 1 of Order VIII of the said Code, unless exceptional circumstances and/or reasons are shown, time to file written statement cannot be extended. In the present case the applications made by the Petitioners are very cryptic and there is no explanation for delay from the date on which summons was allegedly served. It is alleged that the applications were drafted as per legal advice. With the view to ensure that justice is done, this was a case where a permission could have been granted to the Petitioners to file fresh applications containing detailed reasons and grounds. The learned counsel appearing for the original Plaintiffs is right in submitting that if this Court adopts the said course, the Plaintiffs will suffer further prejudice as hearing of the suits filed in the year 2003 will be further delayed. Moreover, the consequence of granting such liberty will be to increase the cost of litigations for both the parties. The learned counsel appearing for the Petitioners has stated that 8 the Petitioners are willing to pay costs of Rs.15,000/- in each petition. To ensure that the suits of the first Respondent do not delay further and as the learned counsel for the first Respondent has left the matter to the Court, this is a case where extra- ordinary jurisdiction of this Court will have to be exercised by permitting the Petitioners to file written statements subject to payment of costs of Rs.15,000/- in each petition. In fact during the course of dictation of the order, the learned counsel appearing for the Petitioners has handed over a cheque of sum of Rs.75,000/- drawn in favour of Respondent No.1 representing the amount of costs in these five Petitions. The learned counsel appearing for the Respondents has accepted the said cheque without prejudice to the rights and contentions of his clients. 5. Hence, I pass the following order : :: O R D E R :: i. The impugned orders are quashed and set aside 9 and the written statements tended by the Petitioners alongwith the applications on which impugned orders have been passed are hereby ordered to be taken on record. ii. It is made clear that if the cheque in the sum of Rs.75,000/- issued by the Petitioners is dishonoured for any reasons whatsoever, the Petitions will stands dismissed and the impugned orders will be continue to operate. iii. Hearing of the suit is expedited and suits shall be decided on or before 30th June, 2010. iv. These Writ Petitions are disposed of in the above terms. [A.S. OKA, J.]