1 wp 6135-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6135 OF 2010 Mr.Dilip Bherushankar Dave ...Petitioner vs. M/s.D.A. Patel & Co. & Ors. ...Respondents Mr.Indu Prakash i/b. Mr.C.K. Tripathi for the Petitioner. Mr.R.B. Singh i/b. M/s.R.B. Singh & Associates for Respondent No.1. CORAM : B.R. GAVAI, J. DATED : JANUARY 10, 2011 P.C :- 1 Rule. Rule is made returnable forthwith. Heard by consent. 2 By way of present petition, the petitioner challenges order dated 9th January, 2009 vide which the learned City Civil Court has dismissed Notice of Motion NO.364/2007 filed by the present petitioner 2 wp 6135-2010 for condonation of delay in filing written statement. 2 The respondent herein has filed a suit for possession. In the said suit, it appears that there was Notice of Motion filed for interim injunction and that was pending for considerable length of time. It further appears that number of chances were given to the petitioner but the petitioner failed to file written statement and as such, order of proceeding without written statement was passed. Subsequently, an application for condonation of delay in filing written statement came to be rejected. Hence, the present petition. 4 The petition is vehemently opposed by the learned Counsel for the respondent-plaintiff on the ground that in spite of grant of various opportunities, the defendant has failed to file written statement and as such, the petition is liable to be dismissed. 3 wp 6135-2010 5 No doubt that there has been a lapse on the part of the defendants in filing the written statement. However, it is to be noted that the suit has been filed in January 2002 and as such, is not be covered by the amended provisions of Order 8 Rule 1 of CPC. In any case, I am of the view that instead of closing doors of justice to a litigant on a technical ground, it will be just that a dispute is decided on merits. In so far as prejudice that is caused to the respondent herein is concerned, the same can be compensated by saddling costs. 6 In that view of the matter, I am inclined to allow the petition. The impugned order dated 9th January, 2009 is quashed and set aside. The petitioner is permitted to place on record the written statement within a period of one month from today. However, it shall be subject to costs which are quantified at Rs.10,000/-. The costs to be deposited within a period of one month in the trial 4 wp 6135-2010 court. On depositing the same, the respondent- plaintiff is at liberty to withdraw the same. The deposit of costs is a precondition for allowing the defendant-petitioner to file his written statement. On failure to deposit the costs within the stipulated period, the petition shall stand dismissed without further reference to this Court. 7 Taking into consideration that the suit is pending for a long time, hearing is expedited. The trial court is directed to decide the suit within one year from today. (B.R. GAVAI, J.)