In partition suits between elderly step-brothers, 58-day delay in written statement condoned as exceptional case warranting defendant's pleadings for fair trial, avoiding defective decrees and prolonged litigation, with costs and time-bound directions.

JUDGMENT :

AJIT B. KADETHANKAR, J.

1. Rule. Rule made returnable forthwith.

2. Heard finally with consent of Mr. J.M. Murkute, learned Counsel for the petitioner and Mr. S.N. Lavekar, learned Advocate for respondent-sole.

3. Regular Civil Suit No.14 of 2016 came to be filed by the present respondent against the petitioner in the Court of learned Civil Judge, Senior Division, Gangakhed seeking partition and separate possession in respect of the suit property.

4. When the suit was filed, the plaintiff/respondent was aged about 70 years old, while the petitioner/defendant was about 65 years old. Suit summons were served on the defendant/petitioner and the petitioner caused his appearance on 06.03.2016. The petitioner sought to file his written statement together with an application to condone the delay of 58 days caused in filing the written statement. The respondent/plaintiff opposed the application for condonation of delay. Learned Civil Judge, Senior Division, Gangakhed heard the parties and vide impugned order dated 15.11.2016 opined that the defendant could not establish sufficient cause to condone the delay, and therefore declined to exercise discretion to accept the written statement on record.

5. This has given cause to the defendant to file the present Writ Petition.

6. Mr. J.M. Murkute, learned Counsel for the petitioner would submit that the suit is for partition between two step brothers. He would further submit that the delay of 58 days caused in filing the written statement is not an inordinate delay so as to deprive the petitioner from his legitimate right to put on record the true facts from his side.

7. He would submit that the petitioner is ready to compensate the plaintiff/respondent if his written statement is allowed to be taken on record. Mr. Murkute, learned Counsel would further submit that the petitioner gives assurance before this Court that he shall not seek a single adjournment in the suit and shall not protract the trial proceedings. He also undertakes to abide by the Written statement sought to be placed in the Trial, to adhere to the Examination is Chief sought to be placed in consequence, and to defend the suit in the light of the issues casted already.

8. He also submits that even the petitioner has tendered his examination-in-chief before the learned Trial Court, however, since the written statement itself is not on record, the learned Trial Court declined to accept the said examination-in-chief. To conclude, Mr. Murkute, learned Counsel for the petitioner submits that the Writ Petition be allowed. The application filed by the petitioner below Exhibit-12 in the Trial Court be allowed, and petitioner’s written statement be directed to be taken on record.

9. Per Contra, Mr. S.N. Lavekar, learned Counsel for the plaintiff/respondent would strongly object the petition. He would submit that the application filed by the petitioner lacks demonstration of good and sufficient reason to condone the delay. He would further submit that the petitioner was not diligent in prosecuting his rights in a timely manner. Another submission is advanced by Mr. Lavekar, Ld. Counsel for the plaintiff/respondent that the evidence in the suit is part heard, and the defendant has even cross-examined the plaintiff.

10. To conclude, Mr. Lavekar would rely upon the judgment rendered by this Court in the case of Sudhirkumar Krishnalal Sah