1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3557 OF 2007 Mrs.Jayashree J. Dalvi .. Petitioner Versus Dattatraya Keshav Lende & Ors. .. Respondents Mr.Sachin Punde for petitioner CORAM : S.C.DHARMADHIKARI, J. DATE : 8th January 2008 P.C. . The petitioner widow is original defendant No.1 in Regular Civil Suit No.21 of 2006. The order impugned is an order passed on 17th April 2007 whereunder her request to recall and set aside "no w.s." order has been rejected. 2. It is the case of petitioner that the suit was instituted by respondent original plaintiff on 4th February 2006 for removal of an 2 encroachment allegedly made by petitioner and for possession of the land on which the alleged encroachment is made, so also damages. 3. The summons was issued on the very day for settlement of issues and the returnable date was 12th June 2006. The petitioner received the suit summons on 25th February 2006. She could not remain present on 12th June 2006. It is her case that she met with an accident. She, therefore, presumed that the matter would be adjourned to another date. However, the learned Judge posted the matter on 19th August 2006 for issues and documentary evidence. The petitioner remained present on 19th August 2006 but the learned Judge adjourned the matter for ex-parte hearing on 21st November 2006. The petitioner pointed out that she was ailing as she met with an accident. Further, she is a widow carrying on business in the suit premises. She, therefore, applied on 21st November 2006 through an Advocate 3 praying that the "NO W.S" order be recalled and she should be permitted to defend the suit. There is no family member inasmuch as the petitioner has no issues. She resides alone. In such circumstances, the application which was clearly making out the case of petitioner being unable to attend on medical grounds, could not have been rejected, is the submission. It is further contended that the learned Judge proceeded on an erroneous basis that the order passed by the trial court does not merely direct that there shall be no written statement but directs that the matter will proceed ex parte and Such an order cannot be recalled by taking recourse to the provisions pertaining to the written statement. 4. I have perused the petition and the annexures thereto. The contesting respondent is not present, though served. Respondent Nos. 2 and 3 are the original defendants. It is only 4 respondent No.1 - plaintiff who could have filed a reply in the trial court but he did not deny the case of the petitioner that she met with an accident. Having perused the petition and the impugned order, I am of the view that the learned Judge has taken a hyper-technical approach. It is not as if the petitioner was not suffering from any ailment. None denies the fact that she met with an accident. Further, it is no as if she was totally negligent and callous. She attended the matter but appearing in person, she could not realise the consequences of the order passed. On the very day the matter was made returnable and the learned Judge decided to proceed ex parte. In such circumstances, learned Judge could have by imposing appropriate conditions, recalled the order to proceed ex parte and permitted the petitioner to file written statement. Considering the settled principles the discretion ought to have been exercised in favour of petitioner. In the 5 peculiar facts of this case and when there is no opposition to the request and the contents of the application also not being specifically denied, the learned Judge should have granted opportunity to defend. 5. In the light of the above, the impugned order is quashed and set aside. The trial Court to permit the petitioner to file written statement, provided the same is filed within 15 days from the date of receipt of this order and costs being paid quantified at Rs.1000/- to the original plaintiff. Petitioner has already deposited a sum of Rs.3500/- towards cost as directed by this Court, considering the fact that the first respondent may have to take steps to defend the petition. However, none appears for respondents. In such circumstances and when I have quantified the cost at Rs.1000/-, the balance sum need not remain deposited in this court. The balance sum be allowed to be 6 withdrawn by petitioner. Petition is allowed accordingly. (S.C.Dharmadhikari, J)