1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1939 OF 2009 Smt.Gajarabai Jagannath Kalje & Ors. .. Petitioners Versus Ashok Patilbuwa Sonawane .. Respondent Mr.V.D.Raut for the petitioners. Mr.S.V.Sadavarte for the respondent no.1. CORAM : A.S.OKA, J. DATE : 23 rd July 2009. P.C.: . Heard learned advocate for the petitioners and learned advocate for the 1 st respondent. Rule. Considering the narrow controversy involved, writ petition is taken up for final disposal. The present petitioners are original defendant nos.2, 3 and 5 in a suit filed by the st respondent. As written statement was not filed by the petitioners, the learned trial Judge passed an order directing that the suit filed by the 1 st respondent will proceed without written statement. The applications were made by the petitioners at Exhibits 47, 49 and 51 before the 2 trial Court for setting aside the said order and for permitting them to file written statement. The said applications were filed on 12 th September 2008. On 19 th June 2008, the trial Court had passed an order that suit be proceeded without written statement. By the impugned order dated 15 th November 2008, the aforesaid three applications were rejected by holding that no ground was made out in the applications. 2. The submission of the learned counsel appearing for the petitioners is that in the summons served to the petitioner returnable date was mentioned as 22 nd June 2008 and therefore without notice to the petitioners the suit could not have been taken on board on 19 th June 2008. His submission is that the order to proceed with the suit without written statement could not have been passed on 19 th June 2008. He submitted that the applications made by the petitioners ought to have been allowed. The learned counsel appearing for the 1 st respondent supported the impugned order by contending that sufficient time was granted to the petitioners to file written 3 statement. He submitted that sufficient cause was not pleaded by the petitioners in their applications and therefore no interference is called for. 3. I have given consideration to the submissions. The summons was issued to the petitioners in which returnable date was mentioned as 22 nd June 2008 which was a Sunday. It appears that the suit was placed on board on 19 th June 2008 and on that day the trial Court passed an order that the suit will proceed without written statement. As stated earlier, the applications on which impugned order has been passed have been filed on 12 th September 2008. The written statements were tendered alongwith the said applications. While deciding the said applications, the learned Judge has overlooked the important aspect that on 19 th June 2008 the suit could not have been placed on board without prior intimation to the petitioners and on the very day an order was passed to proceed with the suit without the written statement. It is true that there is a delay in filing written 4 statement. It must be noted here that the valuation for jurisdiction and court fees of the suit has been made at Rs.68,75,000/- and the suit is for specific performance of agreement for sale of immovable property. Therefore, an opportunity deserves to be granted to the petitioners to file written statement. It is stated that the written statement was tendered alongwith the applications. The 1 st respondent can be compensated by ordering payment of costs. The amount of costs is quantified at Rs.5,000/-. 4. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 15 th November 2008 is quashed and set aside in so far as applications at Exhibits 47, 49 and 51 are concerned. The order passed on Exhibit 45 is confirmed. (b) The applications at Exhibits 47, 49 and 51 are allowed subject to condition of the petitioners paying the total amount of Rs. 5,000/- by way of costs to the 1 st respondent within a period of six weeks from today. 5 Payment of costs will be condition precedent. On payment of costs the written statements of the petitioners shall be taken on record. (c) Rule is made absolute in above terms. (A.S.OKA,J)