1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1599 OF 2009 Smt. Hawabi Yusuf Shaikh, R/o-Karjat, Taluka-Karjat, District-Ahmednagar. ...PETITIONER. VERSUS 1) Mainuddun Yusuf Shaikh, R/o-H.M. N.28, Main HLA Quarter, Old Township, Bangalore, 17, Karnatak, 2) Issak Yusuf Shaikh, R/o-Irani Chowl No.10, Room No.10, Jawahar Nagar, Mumbai (E), 3) Ayub Yusuf Shaikh, 4) Equbal Yusuf Shaikh, 5) Smt. Rabiya Dawood Shaikh, 6) Smt. Surraya Illahi Shaikh, 7) Smt. Jubaida Ismail Shaikh, All residing at Karjat, Tq-Karjat, Dist-Ahmednagar. 8) Abadi Shrfuddin Shaikh, R/o-Room No.4, Second F Main, Buff Sandra, Sanjay Nagar Post, Bangalore 94 Karnatak. ...RESPONDENTS. 2 ... Mr.S.C. Havelikar Advocate for Petitioner. Mr.N.C. Garud Advocate for Respondent No.1. Mr.S.S. Halkude Advocate for Respondent Nos. 2 to 8. ... CORAM: K.K. TATED, J. DATE : 4TH AUGUST, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 2. By this Petition under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 19th August, 2008 passed by the Civil Judge, Junior Division, Karjat below Exhibit 20 filed by the Petitioner for filing Written Statement in the Suit. The Petitioner is original defendant No.1 and Respondent No. 1 is original plaintiff. Respondent Nos. 2 to 8 are original defendant Nos. 2 to 8. Petitioner is mother of Respondent No.1 - original plaintiff. Plaintiff filed Regular Civil Suit No.174 of 2006 against his mother 3 i.e. defendant No.1 and brothers and sisters for permanent injunction restraining them from interfering with his possession of the house property situated at village Karjat, Tq-Karjat, Dist-Ahmednagar and more particularly described in Para 1 of the Plaint. In the said Suit, defendant No.1 failed to file her written statement and therefore the trial Court passed an order of 'no written statement' on 16th January, 2007. As against defendant Nos. 3, 4, 5, 6 and 7 matter proceeded as ex-parte for want of written statement. 3. Learned counsel for the Petitioner states that in Regular Civil Suit No.174 of 2006 till today the defendant Nos. 2 to 8 are not served. Because of 'no written statement' order passed by the trial Court, the Petitioner preferred an application dated 8th January, 2008 at Exhibit 20 for taking her written statement on record. It is stated in the said application that because of old age (age of Petitioner is 75 years) and illness, she failed to take immediate steps for filing written statement. The said application was dismissed by the impugned order dated 19th August, 2008 by the Civil Judge, Junior Division, Karjat on the ground that the 4 Petitioner failed to produce any cogent evidence in support of her contention. 4. It is correct that there is inordinate delay on the part of the Petitioner to file written statement even after "no written statement" order was passed by the trial Court. Learned counsel for the Petitioner states that for want of knowledge about "no written statement" order, Petitioner failed to take immediate steps. The Petitioner in Ground No. (d) on page No.5 of the Petition, stated thus: "(d) The Petitioner, till January, 2008, was not aware about such order is passed against her interest. When the petitioner approached to her advocate in January, 2008, she learnt that "No Written Statement" order is passed. The Petitioner without fail approached other advocate and instructed to file VP and take appropriate steps to bring the written statement on court record." 5. In support of his contention, learned counsel for the Petitioner relied on the Judgment in the matter of M/s. R.N. Jadi and Brothers and others vs. 5 Subhashchandra, reported in 2007 AIR SCW Page 4568. In this Authority, the Apex Court held that time limit fixed does not take away power of Court to accept written statement filed beyond time. Para 8 of the said Judgment reads as under: "8. Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent 6 prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried." 6. In reply to these submissions, learned counsel for the Respondent Nos. 1 and 2 submitted that the Petitioner failed to disclose any reason for condonation of delay of more than one year in filing the written statement and for setting aside "no written statement" order. He further submitted that along with application dated 8th January, 2008 the Petitioner has not filed any documentary evidence about her age. Considering these facts, the trial Court rightly rejected the Petitioner's application below Exhibit 20 by order dated 19th August, 2008 and therefore it is not in the interest of justice to interfere with the well reasoned order passed by the trial Court. 7. The title of the Petition itself shows that the Petitioner is more than 75 years old lady. In her application dated 8th January, 2008, she specifically 7 stated that because of old age and as she was suffering from asthma and high blood pressure, she could not take immediate steps for filing written statement. Further the Petitioner specifically stated in Ground on Page No.5 of the Petition that for want of knowledge, she could not take immediate steps for filing application to recall the order of "no written statement". It is her case that till January, 2008, she was not aware about the order passed against her. 8. Considering these facts in the present case and the Judgment of the Apex Court in the matter of M/s. R.N.Jadi and Brothers (supra), I find that this is a fit case where the application filed by the Petitioner below Exhibit 20 dated 8th January, 2008 requires to be allowed. Hence the order dated 19th August, 2008 passed by Civil Judge, Junior Division, Karjat below Exhibit 20 in Regular Civil Suit No.174 of 2006 is set aside and the application filed by the Petitioner below Exhibit 20 is allowed directing the trial Court to take written statement of the Petitioner - original defendant No.1, on record. Writ Petition is allowed. The Petitioner to pay a sum of Rs.1000/- to Respondent No.1 by way of cost 8 within two weeks from today. 9. Rule is made absolute accordingly. [K.K. TATED, J.] asb/JULY09/wp1599.09