1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.4710 OF 2010 Mahendra Jagganath Mendu and others. ..Petitioners -VERSUS- Smt.Rajani Vishwas Joglekar and others. ..Respondents .... Mr.K.M. Nagarkar, advocate for petitioners. Mr.S.D. Kulkarni, advocate for respondent no.1. Mr.R.N. Bhapkar, advocate for respondent no.2. Mr.M.A. Deshpande, advocate for respondent no.3. .... (CORAM : V.R.KINGAONKAR,J.) DATE : 14th July, 2010. PER COURT : 1. By this petition, the petitioners, who are the original defendant nos.2 to 4 in the Suit (S.C.S. No.154/2008) are challenging the order dated 29th March, 2010 rendered by the learned Civil Judge (S.D.), Kopargaon. 2. The petitioners were allowed to file their written statement by setting aside No W.S. order, subject to payment of cost of Rs.500/-. Though, such order was passed on 06.11.2009 yet they did not deposit cost within reasonable time. They, however, filed application (Exh.24) on 29.03.2010 seeking leave of 2 Court to deposit cost and to take written statement on record. The learned Civil Judge has rejected the application by the impugned order. 3. Heard learned counsel for the parties. 4. Mr.Kulkarni would submit that the petitioners are not entitled to seek indulgent of the Court because no tangible reasons are mentioned in Application for delay caused in payment of cost. He would further submit that written statement is required to be filed within a period of 90 days at the most and there is procedural lapse committed by the petitioners then they can not be allowed to give go by to such legal impediment by simply allowing them to file written statement on payment of some cost which has been awarded. Hence, he urged to dismiss the Petition. 5. It appears that the petitioners were required to deposit cost up till 05.02.2010 but same could not be deposited and as such, they filed application for leave with assertion that due to unavoidable reasons, they could not comply with the order. It appears that the cost was awarded due to the delay caused in filing of written statement. The written statement was filed along with application itself when `No W.S. Order' was set aside on 3 06.11.2009. The said order reads as follows : `O' No W.S. order set aside subject to cost of Rs.500/-. -Sd- C.J.S.D. 6.11.2009 6. The Court did not fix any time for payment of cost. If, the Court would have fix time to deposit cost and further provided for penal action on failure to pay such cost, the matter could be different. It is also explicit that under Section 148 of the Civil Procedure Code, the Court is empowered to extend the time stipulated for the payment of cost. The impugned order shows that the learned Civil Judge (S.D.) was under impression that the time was fixed for payment of cost. This is rather improper and incorrect observations. He observed :Even they did not pay the cost amount in time which clearly shows that the defendants are deliberately trying to prolong the matter." As stated before, there was no time fixed, and therefore, in the interest of justice, the cost could be accepted when the written statement was already filed. 4 7. In the result, I find that the impugned order is unsustainable being perverse. Hence, Petition is allowed. The impugned order is set aside and the trial Court is directed to accept the written statement on deposit of the cost as well as the petitioners shall pay cost of Rs.2000/- to the counsel for respondent within a period of two weeks. The trial Court is at liberty to decline to take Written Statement on record, if the cost are not deposited within time. (V.R.KINGAONKAR) JUDGE gas/wp4710.10