:1: 2952.11-wp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2952 OF 2011 IN NOTICE OF MOTION NO.791 OF 2009 IN S.C.SUIT NO.2194 OF 2005 Mohammed Ahmed Khan ..Petitioner Vs. Mohammed Athar Nizamuddin & Anr. ..Respondents Mr.M.V.Holmangi for Petitioner. Mr.D.R.Singh for Respondent No.1. CORAM :- B.R.GAVAI,J. DATE :- APRIL 25, 2011 P.C. Rule, returnable forthwith. Heard by consent. 2. By way of the present petition, the petitioner challenges the order dated 22nd March, 2010 passed in Notice of Motion No.791 of 2009 in Small Cause Suit No.2195 of 2005, thereby rejecting the Notice of Motion filed by the present petitioner for condonation of delay in filing the written statement by recalling the order dated 16th April, 2009. 3. Respondent No.1 has filed the suit for injunction against the present petitioner and the other respondents. In the said suit, the petitioner is defendant No.1. It appears that in the said suit, though the suit summons was not served upon the defendants, the present petitioner who is defendant No.1 and defendant Nos.12 to 15 appeared. Accordingly the learned Trial Court :2: 2952.11-wp vide order dated 7th March, 2008 directed them to file written statement. Accordingly, written statement of the present petitioner was filed on 17th March, 2009. An earlier application filed by the present petitioner for condonation of delay in filing written statement was rejected on 2nd June, 2009 on the ground that as per the City Civil and Sessions Court Rules, a Notice of Motion was required to be taken out by the concerned party. As such, the Notice of Motion in question was taken out. The same was rejected. Hence, the present petition. 4. Shri Holmange, learned Counsel appearing for the petitioner submits that the learned Trial Court has grossly erred in rejecting the application. He submits that since the suit summons was not served on the petitioner, the learned Trial Court ought to have allowed the Notice of Motion. 5. The learned Counsel for the respondents vehemently opposed the petition. 6. From the impugned order itself, it appears that though the suit summons was not served, the respondent had appeared before the learned Trial Court and the learned Trial Court, on 7th March, 2008 directed the respondents to file their written statement. It appears that the same Counsel appeared on behalf of defendant No.1 and defendant Nos.12 to 15. It appears that though the written statement on behalf of defendant Nos.12 to 15 was filed within the stipulated period, the written statement on behalf of defendant No.1 was not filed within the stipulated period and was subsequently filed on 17th March, 2009. 7. It appears that since the same Counsel was appearing on behalf of the present petitioner and defendant Nos.12 to 15 whose stand is not conflicting with each other, there was some delay in filing the written statement of the present petitioner. However, that has also been filed on 17th March, 2009. As :3: 2952.11-wp such, the only question before the learned Trial Court was regarding condonation of delay in taking the written statement on record. It appears that the petitioner was not at fault for the delay in filing the written statement. It is settled law that for a negligence of a Counsel, a litigant should not be made to suffer. So far as the prejudice that is caused to defendant No.1 – plaintiff is concerned, the same can be compensated by saddling of costs. 8. In that view of the matter, the impugned order dated 22nd March, 2010 is quashed and set aside. The delay in filing the written statement is condoned and the learned Trial Court is directed to take written statement on record. However, this shall be subject to the costs quantified at Rs.3000/- to be deposited by the petitioner in the Trial Court within three weeks from today. On depositing the costs, the respondent No.1 (plaintiff) would be at liberty to withdraw the same. The condition to deposit the costs is a pre-condition for taking the written statement on record. If the costs, as directed, is not paid within the stipulated period, the petition would be deemed to have been dismissed automatically. 9. In view of disposal of the Writ Petition, the Civil Application does not survive, hence the same stands dismissed. (B.R.GAVAI, J.)