Exceptional circumstances must be made out to permit the filing of a written statement beyond the prescribed period.

ORDER :

1. By this petition, petitioners challenge the order dated 10.03.2022 passed by the Joint Judge, Senior Division, Dhule rejecting application filed for setting aside ‘no written statement’ order, for condonation of delay in filing written statement and for taking on record their written statement.

2. The suit is filed by plaintiff/respondent for specific performance of agreement dated 20.10.2008 and for alternate relief of compensation. The defendant was served with the summons in the suit. Though he appeared in the suit, he failed to file written statement. Therefore, ‘no written statement’ order was passed on 07.12.2013. Instead of seeking recall of ‘no written statement’ order dated 20.12.2013 defendant filed application for rejection of plaint under the provisions of Order 7 Rule 11 of the Code of Civil Procedure (for short ‘the Code’) on 20.12.2013. That application came to be partly allowed by order dated 24.02.2017. The plaintiff’s prayer for specific performance was held to be outside limitation, whereas the alternate prayer for refund of consideration and compensation was held to be within limitation. Even after passing of order dated 24.02.2017 defendant failed to apply for setting aside ‘no written statement’ order. In the meantime, the application for temporary injunction filed by plaintiff came to be decided on 11.10.2021. The defendant thereafter filed application dated 18.11.2021 for setting aside ‘no written statement’ order by condoning delay and for taking written statement on record. That application has been rejected by the Trial Court by order dated 10.03.2022.

3. Appearing for petitioners Mr. Bolkar, learned counsel would contend that the delay in filing application for setting aside ‘no written statement’ order is required to be computed from 24.02.2017 when the application for rejection of the plaint under the provisions of Order 7 Rule 11 of the Code was decided. He would further submit that while computing the delay from 24.02.2017 onwards, the entire period of lockdown from 15.03.2020 upto 28.02.2022 is required to be excluded as per order of the Supreme Court dated 10.01.2022. He would therefore submit that upon exclusion of such period, the delay in filing application for setting aside ‘no written statement’ order would be hardly about 3 years which ought to have been condoned by the Trial Court. In support of his contentions Mr. Bolkar has relied upon the following judgments:

1. Zolba Vs. Keshao and Others, (2008) 11 SCC 769.

2. Methodist Espiscopal Church, Nagpur Vs. Methodist Church in India, Mumbai, 2009 (4) Mh.L.J. 589.

3. Dr. Praful Pimpalwar Vs. Prakashchandra Purushottamsaran Agrawal, (2009) 6 Bom CR 460.

4. M/s. Vidhi Construction Vs. Janabai Shriram Vayale @ Janabai Pandurang Patil, 2015 SCC OnLine Bom 6709.

5. Indrachand Deepchand Maralecha Vs. Shahzada Shabbirbhaisaheb Nuruddin and Others, 2021 SCC OnLine Bom 5220.

4. Per contra Mr. Patil, learned counsel appearing for respondent would oppose the petition and support the order passed by the Trial Court. He would further submit that petitioners/defendants filed application for rejection of plaint on 20.12.2013 after passing of ‘no written statement’ order on 07.12.2013. Therefore, the reason of pendency of application for rejection of plaint was not the reason for non-filing of the written statement. He would further submit that the application for setting aside ‘no written statement’ order was casually filed without specifying any reasons. He would further submit that the date of decision of application for temporary injunction filed by plaintiff has no relevance for determining the delay caused in applying for setting aside ‘no written statement’ order. In support of his contentions Mr. Patil would rely upon the following judgment:

1. Dr. Milind Arvind Killedar Vs. Prashant Mane and Ors., Writ Petition No.10103/2017 decided on 01.03.2018.

2. Baljeet Singh (Dead) Through Legal Representative and Ors. Vs. State of Uttar Pradesh and Ors, (2