Shalubai Hanmant Kadam v. Sidram Bapurao Gambhire & Ors.

Shri S. S. Manale, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 10TH JANUARY, 2012. PER COURT : . The petitioner is the original plaintiff. The petitioner has filed suit for partition and separate possession. The respondent Nos. 3 to 5 were subsequently added as party defendants. Thereafter, no written statement order came to be passed against them. The respondent Nos. 3 to 5 thereafter filed an application for setting aside no written statement order along with written statement. The said application is allowed. Aggrieved thereby present petition is filed.

Shri Manale, the learned counsel for the petitioner strenuously contends that every time an adjournment application was filed, different reasons were mentioned for non filing of written statement. There is an abnormal delay in filing the 2 wp 35.12 written statement. As per Order VIII Rule 1 of the Code of Civil Procedure the written statement has to be filed within 30 days from the service of summons. Even after no written statement order is passed the written statement is not filed for nine months. As such, the impugned order is erroneous and deserves to be set aside.

The suit in question is for partition and separate possession. It is substantive suit for an immovable property. In such case, it is always in the fitness of things to decide the matter on merits. The Court has given the reasons while setting aside the no written statement order and accepting the written statement. The Court has perused the medical certificate of the defendant No. 3 and has found the reason for not filing the written statement within time. The discretion exercised by the Trial Court is plausible one.

In the light of above no case is made out for interference in the writ jurisdiction of this Court under Article 227 of the Constitution of India. As such, the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Jan. 12