1. Heard the learned Counsel for the parties.

2. The following substantial question of law is involved in the present Appeal.

“Whether the trial Court was wrong in rejecting the application Exhibit 17 made by the defendants/appellants to set aside the exparte order and to permit to file written statement after the order was passed on the previous day to proceed with the suit exparte and without written statement ?”

3. Admittedly, respondent Nos. 1 to 5 filed Regular Civil Suit No.685 of 1997 in the Court of Civil Judge, Junior Division, Vashi, Navi Mumbai against the present appellants and the respondent No.6 seeking declaration that they had the co-parcenary right in the suit property and also they had right to claim the plot under 12.5% Scheme for the Project Affected Persons. Government of Maharashtra had acquired huge tract of agricultural land for CIDCO for development of a new township. After development of the land, the Government came out with a Scheme whereby the persons, from whom the land was acquired, would be given the developed plots of land having the area equal to 12.5% of the land acquired from them. The present appellants, who were the defendants in the suit, were served with the suit summons on 28.8.1997 and the matter was fixed for appearance on 29.8.1997. However, they could not appear either on 29.8.1997 or on 5.9.1997. The trial Court passed an order on 5.9.1997 to proceed exparte without written statement. On 17.10.1997, the appellants/defendants filed an application Exhibit 17 to set aside the order dated 5.9.1997 and for seeking leave to file written statement. It was supported by affidavits to the effect that both the defendants, namely, Narayan Padu patil and Baliram Laxman Patil were not keeping good health and, therefore, they could not appear and file the written statement. Plaintiffs’ Advocate gave no objection subject to heavy cost. The trial Court rejected that application by order dated 17.11.1997 holding that he had no power under the Civil Procedure Code to grant permission to file written statement after having passed an order to proceed without the written statement. However, the trial Court did not proceed to pass the judgment under Order VIII Rule 5(2) or Rule 10 of C.P.C., but proceeded to hear the evidence led by the plaintiffs. On 7.2.1998, the suit came to be dismissed. The plaintiffs/respondent Nos. 1 to 5 preferred Civil Appeal No.29 of 1998. That appeal came to be allowed by the impugned judgment dated 10.1.2001. Hence, the Second Appeal filed by the defendants.

4. Mr. Godbole, learned Counsel for the appellants contended that the defendants did not get proper opportunity to file written statement to defend themselves. He conceded that before the appellate Court, the Advocate appearing for the present appellants had wrongly made a statement before the Court that it was not necessary for him to file written statement. Mr. Godbole contends that it was necessary for the appellants to file written statement to defend the suit properly. He contends that the trial Court was wrong in holding that he had no power to allow filing of written statement after having passed the order to proceed without written statement.

5. Order VIII Rule 5(2) and Rule 10 read as follows :-

“5(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion,require any such fact to be proved.”

“5(10) Procedure when party fails to present written statement called for by Court – where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn