1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7886 OF 2010 Kanu Kirana Merchant, through its Proprietor, Jethanand Gyanchand Hariyani, Age 49 years, Occ. Business, R/o C/o Kanu Kirana Merchant, Shop No.8, Ganj Golai Shopping Complex, Latur ... PETITIONER VERSUS M/s Kishorilal Babulal, through its Proprietor, Rameshchandra s/o Prahladrai Agrawal, Age 54 years, Occ. Business, R/o Navandar Galli, Latur. ... RESPONDENT ..... Shri S.P. Urgunde, Advocate for the petitioner Mrs. Anjali Dube, Advocate for the respondent ..... CORAM : A.A. SAYED, J. DATE : 24th November, 2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing. 2 2. The challenge in this petition is to the order dated 11.8.2010, passed by Civil Judge, Senior Division, Latur in Special Civil Suit No.27/2006 below Exh. 71, by which order, the learned Civil Judge, Senior Division, Latur rejected the application for setting aside NO WS order on the ground that written statement was not filed along with the application. 3. The impugned order dated 11.8.2010 reads as follows : "W.S. not filed with this application. Hence rejected." 4. The learned counsel for the petitioner submitted that he had changed his Advocate during the pendency of the suit and it was on account of the mistake of his previous Advocate that the written statement was not filed and the Court had passed an order of “No WS” on 25.1.2010. The learned counsel submitted that the petitioner was diligently pursuing the matter and following up the matter with his Advocate during the hearing of interlocutory application filed by the respondent wherein an order came to be passed directing the petitioner to furnish security, failing which his tenancy rights would stand attached before judgment in the suit. He submitted that when the petitioner came to know the fact that the written statement was not filed and No WS order was passed, he immediately filed the application dated 3 11.8.2010 and sought time to file the written statement. The learned counsel, therefore, urged that, the delay in filing the written statement ought to have been condoned by the Trial Court and that the petitioner may be permitted to file his written statement by setting aside the impugned order. 5. The learned counsel for the respondent, on the other hand, supported the impugned order and submitted that the petitioner is merely interested in delaying the hearing of the suit and that no case is made out by the petitioner warranting any interference. 6. I have heard the rival contentions of the parties. On perusal of the impugned order, it appears that, the Court was inclined to allow the application of the petitioner and accept the written statement on that day. However, since the written statement was not filed alongwith the application, the application was rejected. It further appears that, the petitioner was diligently pursuing the matter with his Advocate in connection with the interlocutory application for attachment before judgment and it cannot be said that the petitioner was negligent or that the delay was deliberate. The contention of the petitioner of negligence of his previous Advocate, though not entirely convincing, cannot be ruled out. Be that as it may, considering the fact that the written statement is ready, as is stated across the bar by the Advocate for the petitioner, in the 4 interest of justice, I am inclined to grant an opportunity to the petitioner to file his written statement, subject to costs. 7. Taking an overall view of the matter, in my opinion, the following order would meet the ends of justice: O R D E R (i) The impugned order dated 11.8.2010 is set aside. (ii) The written statement shall be allowed to be filed by the petitioner/ defendant in the Trial Court. (iii) The delay in filing the written statement shall be deemed to have been condoned and the “No WS” order shall also be deemed to have been set aside. (iv) The petitioner shall pay costs of Rs. 5000/- (Rupees five thousand) to the respondent. (v) Costs shall be condition precedent. (vi) The trial Court shall endeavour to dispose of the suit as expeditiously as possible. 8. The statement of the learned counsel for the petitioner that the petitioner will cooperate in the early 5 disposal of the suit is accepted. 9. Writ Petition is allowed in the aforesaid terms and rule made absolute accordingly. 10. Authenticated copy be furnished to the parties. A.A. SAYED JUDGE