ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 7645 OF 2008 PETITION NO. 7645 OF 2008 PETITION NO. 7645 OF 2008 Smt.Sheila P.Coutinho ...Petitioner Vs. Shamsuddin Kassamali Quereshi & Anr. ...Respondents. Ms.Manjiri Shah i/by M/s. Thakore Juriwala & Associates for the Petitioner. Mr.R.G.Singh i/by M/s.Legal Liaison for Respondent No.1. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 17th December, 2008. : 17th December, 2008. : 17th December, 2008. P.C. P.C. P.C. The Petitioner who is Defendant No. 2 in a suit filed by Respondent No.1 whereby basic prayer is against Defendant No.1 i.e. Respondent No.2 herein for declaration that he is the tenant of Defendant No.1 2. Admittedly, Respondent No.2 has been missing since 27/11/2002 and a complaint filed accordingly with the Missing Person Bureau and the same is still pending. 3. Respondent No.1 on some apprehension filed present Suit No.4816 of 2003 against the said missing Respondent No.2 and the Petitioner/Defendant No.1 who ( 2 ) is the sister of Respondent No.2. 4. Admittedly, Respondent No.1/ Plaintiff is not the owner of the property. Therefore, apparently there is no one to defend the suit. But once claim is also against the Respondent No.2, who if not attend or contest the matter, the decree is bound to be in favour of the plaintiff for want of contest itself. That will result into clear declaration without any contest and the Plaintiff will be declared as a tenant of the premises. This circumstances according to me are glaring to consider the case of the Petitioner Sister, who wants to contest the matter. It is natural that in the absence of any material on record as she is not the party to the agreement or document referred into the plaint, she is bound to insist for inspection and verification of those documents in all respects and needs time to understand the whole matter. 5. Admittedly, an application filed by the Petitioner, for inspection was dismissed on 03/04/2007, for default. The Petitioner came to know about the same, some time in the month of August-2007 and therefore had left with no alternative but to move ( 3 ) this Application for condonation of delay along with Written Statement based on the material available with her. 6. The contention is that there is no justification whatsoever given for condonation of delay of 2 1/2 years. The peculiarity of this case need to be considered on different footings. 7. The reliance placed on Pandurang @ Shashi Dessai Pandurang @ Shashi Dessai Pandurang @ Shashi Dessai Vs. Vs. Vs. Beraldin Tavaeres, 2007(2) ALL MR 660, Beraldin Tavaeres, 2007(2) ALL MR 660, Beraldin Tavaeres, 2007(2) ALL MR 660, with regard to the law based upon the Order 8 Rule 1 of the Code of Civil Procedure (for short, "CPC") need no discussion. The important aspect is the facts and circumstances. That was not the case of missing person or missing contested Defendant. Here the basic claim of the Plaintiff against the Defendant No.1/ Respondent No.2 who is missing. It is desirable that the remaining party to the proceedings, in the present case, the Petitioner- Defendant No.2 being Sister need to contest the matter based upon the whatever material available. 8. Admittedly, in the plaint there are references made of various documents. Those documents admittedly ( 4 ) not singed by the Petitioner- Defendant No.2. The whole case is based upon those documents signed or entered into, as alleged between the Plaintiff and Defendant No.1. If, this is the position, inspection of original documents and detailed enquiry about these documents, just cannot be overlooked. 9. To file Written Statement within a stipulated period, is requirement of law. But the circumstances as referred above, in my view is very important to consider the application filed by the Petitioner for condonation of delay in filing the Written Statement in question. There is nothing to show that the Petitioner benefited by not filing the Written Statement in time or it is a malafide application. 10. The contention that those documents are well within the knowledge because the inspection of those documents was already given is a fact, which other side is not accepting. The fact remained that the application for inspection of those documents which was admittedly dismissed on 3rd April, 2007. Thereafter, on 04/08/2007 an application for condonation of delay was filed along with the Written Statement. ( 5 ) 11. In view of this, taking all this into account, I see there is no reason not to condone the delay in filing the Written Statement in the interest of justice, therefore, I am inclined to grant this application. 12. However, this is subject to costs of Rs.7,500/- to be paid to Respondent No.1 on or before 31/12/2008. 13. The Petition is, accordingly allowed in terms of prayer clause (a). No order as to costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)