1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.2937/2010 SHAMRAO GOVINDRAO KATHANE ..VS.. OMKAR MAROTI JADHAO - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri N.B.Bargat, advocate for the petitioner CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 17, 2011. Heard Shri Bargat, the learned counsel for the petitioner. The petitioner is the original plaintiff. A suit was filed by the plaintiff for a declaration and permanent injunction against respondent in respect of the suit land. The trial court passed an order of proceeding exparte against the respondent in the absence of the written statement on 17.3.2009. On 21.3.2009 the respondent appeared before the court along with his counsel with an application for setting the order of “No W.S.” dated 17.3.2009. The application was seriously opposed by the petitioner. The trial court however, by the impugned order dated 22.7.2010 allowed the application filed by the respondent and permitted the respondent to file the written statement. It was stated by the respondent/ defendant in the application for permission to file the written statement that he was a patient of chronic asthama and was also suffering from kidney stone infection since past 8 years. It was stated that since June 2009 he was seriously ill and in view of the aforesaid diseases he was hospitalized at times at Nagpur, Jalgaon and Pune. In such circumstances, according to the respondent he was not able to file the written statement. It was stated that in view of these unavoidable circumstances, the defendant had failed to file the written statement within the prescribed time. The respondent had prepared the written statement, but filed the same after he filed the 2 application for permission to file written statement. On perusal of the application filed by the respondent and the impugned order passed by the trial court on 22.1.2010, it appears that the trial court did not commit any error in allowing the application filed by the respondent for permission to file written statement. The court found that the defendant was a patient of chronic asthama and kidney stone since past 8 years and since he was hospitalized, he was not able to contact his counsel and prepare the written statement. The court observed that the defendant was present in the court on 21.1.2010 and the court personally found that the defendant was actually suffering from the ailment of chronic asthama. In such circumstances, the court found that merely because the counsel for the defendant had not filed any application before the court or had not been diligent in prosecuting the case of the defendant, the defendant should not suffer for the fault on the part of his counsel. Since the rejection of the application could have resulted in miscarriage of justice, the trial court rightly allowed the application by saddling costs of Rs.1500/- on the defendant. The order passed by the trial court does not suffer from any error, much less a jurisdictional error, so as to interfere with the same in exercise of the writ jurisdiction. In the result the writ petition fails and is dismissed with no order as to costs. JUDGE SMP