NARAYAN B GAONKAR Vs. SUDHAKAR YENU CHODANKAR

JUDGEMENT

(1.) RULE returnable forthwith. Heard by consent.

(2.) THE petitioners have challenged the order dated 28. 9. 2007 dismissing the petitioner's application at Exh. 10 for taking written statement on record. The petitioners are the defendants against whom the respondents have filed a suit for declaration and permanent injunction. In that suit the petitioners filed written statement on 5. 3. 2005 i. e. beyond the time prescribed by the Code of C. P. On 16. 12. 2004, the defendants have filed an application under Order VII, rule 11 of C. P. C. for rejection of plaint which has admittedly not yet been decided. It is true that by itself filing an application under Order vii, Rule 11 of C. P. C. , would not entitle a party to not file the written statement. However, it is possible as seems to be a case here that the party omit to file written statement awaiting a decision on the application under Order VII, Rule 11 of C. P. C. In fact, the Supreme court has in Salimbhai and Others Versus State of Maharashtra and others reported in (2003)1 SCC, 557 has held that the Trial Court ought not to direct the defendant to file the written statement without deciding the application under Order VII, Rule 11 of C. P. C. In the circumstances, it is possible that the defendant bonafidely did not file the written statement in view of the pendency of his application under order VII, Rule 11 of C. P. C.

(3.) IN the circumstances, the delay about 45 days in filing the written statement is hereby condoned. The written statement is directed to be taken on record. Rule is made absolute. The writ petition is disposed of.