1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5470 OF 2009 Smt.Tagibai Mangilal Rathod ...Petitioner vs. Meerabai Madhukar Chavan ...Respondent Mr.Sagar Kasar for the petitioner None for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 9, 2009 P.C. 1 Heard the learned counsel for the petitioner. Office remark shows that the respondent is duly served. On 22nd July 2009, Notice for final disposal was already issued. 2 The challenge in this writ petition by the petitioner who is the original defendant is to the order dated 30th March 2009 passed by the trial court on application at Exhibit-25. Earlier orders passed by the trial court are also subject matter of the challenge. By the application at Exhibit-25, a prayer was made for setting aside the order passed by the trial court to proceed with the suit without written statement of the petitioner. 3 In the suit filed by the respondent, notice of application for temporary injunction was served to the petitioner and on the basis of the said notice, on 29th September 2007 the petitioner appeared through an Advocate. On the very day, an application at Exhibit 16 was made by petitioner seeking permission to file the written statement and reply to the application at Exhibit-5 which was tendered along with the said application. An order was passed by the trial court on 2 13th June 2008 on the said application at Exhibit 16. The learned Judge observed that the application was not filed within the stipulated period of 90 days and there was no affidavit in support of the appliation. In the subsequent application at Exhibit 25, it is pointed out that along with the application at Exhibit-16, written statement and reply was tendered. 4 In the application at Exhibit-16, there is a specific assertion that the petitioner has tendered written statement and reply to the application at Exhibit- 5 and a prayer was that the same may be taken on record. While rejecting the said application by order dated 13th June 2008, there is no observation made that the written statement was not tendered. In fact, the said application ought to have been allowed by the trial court. The said application was kept pending for a period eight months. It is true that instead of challenging the said order, a further application at Exhibit-25 was made by the petitioner. The said application was made as the petitioner was advised to file the same. 5 Considering the fact that the written statement was tendered on 29th September 2007, the trial court ought to have taken the same on record. Hence, the writ petition must succeed. 6 Hence, I pass the following order : i) Impugned orders passed below applications, at Exhibit-16 and Exhibit-25 are set aside and the trial court is directed to take the written statement tendered by the petitioner on record of the suit. ii)Writ Petition is disposed of in above terms. JUDGE