Writ petition 2517/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2517/2010 1 Babarao S/o Parasram Kalne, Age : 57 yeas, Occu. Agriculture. 2 Jijabai w/o Babarao Kalne, Age : 52 years, Occu. Household. 3 Prakash s/o Babarao Kalne, Age : 27 years, Occu. Agriculture. 4 Chakradhar s/o Babarao Kalne, Age : 25 years, Occu. Agriculture. 5 Shridhar s/o Babarao Kalne, Age : 22 years, Occu. Agriculture, All r/o Saregaon, Tq. Mudkhed, Dist. Nanded. ...Petitioners. Versus 1 Ganpatrao s/o Kondji Kalyane, Age : 63 years, Occu. : Agriculture. 2 Baburao s/o Kondji Kalyane, Age : 58 years, Occu. Agriculture, All R/o Saregaon, Tq. Mudkhed, Dist. Nanded. 3 Sahebrao s/o Wamanrao Kalyane, Age : 43 years, Occu. Service, R/o Taroda (Kd.), Tq. & Dist. Nanded. 4 Chandorao s/o Devrao Kalyane, Age : 28 years, Occu. Agriculture, R/o Taroda (Kd.) Tq. & Dist. Nanded. ...Respondents. Mr. G.R. Ingole Patil, Advocate for the petitioner. Mr. Ganesh P. Shinde, advocate for respondent Nos.1 to 4. Writ petition 2517/2010 2 CORAM : A.V. NIRGUDE, JJ. DATED : 11th March, 2011. ORAL JUDGMENT: 1. Heard. 2 Rule. Rule is made returnable forthwith. 3 The learned advocates appearing for the parties agreed for disposal of this writ petition at admission stage. 4 This writ petition is challenging the order dated 22/01/2010 passed on Ex. 43 in Regular Civil Suit No. 41/2009 pending before the Civil Judge (Junior Division), Mudkhed. Initially, this suit was filed before the Civil Judge (Junior Division), at Nanded in April, 2007. It is common ground that the petitioners who are defendants in Regular Civil Suit, were served with summons in due course and had caused their appearance through their advocate before Nanded Court. Due to establishment of separate Court at Mudkhed, this suit was transferred to Mudkhed Court in 2009 and the suit was renumbered as Regular Civil Suit No. 41/2009. Despite of this change, the petitioners / defendants did not file written statement. The petitioners / defendants were also aware that the respondents / plaintiffs had already filed interim application seeking injunction against them. This application was pending rather belatedly. On 18/11/2009, the petitioners / defendants moved their application seeking permission of the Court to file written statement. Writ petition 2517/2010 3 The learned judge of the trial Court immediately rejected the application saying that such permission can not be given because permissible 90 days period for filing written statement was long back over. As if that was not enough, again on 08/01/2010 the petitioners / defendants once again made a similar prayer and sought permission to file written statement. Along with this application, the petitioners / defendants filed an affidavit as to what prevented them from filing the written statement. The reason they mentioned in the affidavit is that the defendant who was taking care of the case, was old and illiterate. He said that he was not aware of the transfer of the case from Nanded Court to Mudkhed Court etc.. The learned judge rejected even this application vide the impugned order dated 22/01/2010. The learned judge held that the reason mentioned in the affidavit of the petitioners / defendants did not make out a case of exceptional circumstances which would persuade him to allow the application. 5 I am however inclined to allow the petitioners’ prayer. The nature of the claim in the suit is quite serious. Apparently unless the petitioners/ defendants participate in hearing of the case, the learned judge of the trial Court would not be able to decide the disputed question arising in the suit. So, the petitioners participation and filing of the written statement for deciding the suit appears to be necessary. Secondly, despite of the seriousness of the claim, the respondents / plaintiffs had not pressed the application for interim relief till the date of the impugned order. The suit thus is lying undecided for more than two years and the respondents/plaintiffs did not show his earnestness to get it decided sooner. Writ petition 2517/2010 4 6 I am inclined to accept the explanation given by one of the petitioners that he is old and illiterate and yet he is given responsibility of defending the suit and so, he could not take steps to file the written statement. This could happen to the people who reside in villages. The petitioners should be put to a term for showing them this indulgence. They should be directed to pay cost of Rs.5,000/-. Hence, order. ORDER a) Rule is made absolute in terms of following order. b) On petitioners’ depositing cost of Rs.5,000/- in the lower Court on or before 10/04/2011, the impugned order dated 22/01/2010 shall stand set aside and the petitioners / defendants shall be allowed to file written statement on the same day. c) In case of failure, this writ petition shall stand dismissed. d) If the cost is paid, the same shall be handed over to the respondents / plaintiffs. [A.V. NIRGUDE, J.] ts k/2011/march11/wp2517.10/ok Writ petition 2517/2010 5