RULE. Mr. Jignesh H. Kapadia, for Mr. Harin P. Raval, learned Counsel waives service of notice of rule on behalf of respondent No.1. Though served, none appears on behalf of respondents Nos. 2 and 3.

1.0 The challenge in this petition is to the order dated 22.10.2008, passed by the trial Court in application at Exhibit-45, in Civil Suit No. 215 of 2006, whereby the above-mentioned application of the petitioner for permission to file a written statement, has been dismissed.

2.0 The brief facts of the case, as emerging from the material on record are that the petitioner is the original defendant No.3 in the above-mentioned Civil Suit which has been filed by respondent No.1-(Original Plaintiff). The respondents Nos. 2 and 3 are the original defendants Nos.1 and 2, who are being proceeded ex parte, in the Civil Suit. The Suit was filed on 20th December, 1999. Upon issuance of summons, defendant No.3 entered appearance on 04.02.2000.

2.1 It appears that, at the behest of defendant No.3, the Suit was adjourned for about nine months. Thereafter, an earthquake struck the State of Gujarat on 26.01.2001, and the file of the case remained closed for some time. Pursuant thereto, it appears that the right to file a written statement of the petitioner was closed, on 03.11.2001. The file of the case remained closed for another three years. On 16.08.2007, along with the application, certain documents were sought to be submitted by the petitioner. The trial Court permitted the petitioner to produce the documents, as there was no serious objection from respondent No.1(Original Plaintiff). However, the application for filing a written statement has been dismissed by the impugned order, hence the present petition.

3.0 Mr. B.B. Gogia with Mr. Anand B. Gogia, learned Counsel for the petitioner has submitted as under:

(i) That, the impugned order is illegal and perverse as the Court has not exercised jurisdiction vested in it, in a proper manner.

(ii) That, the documents sought to be produced by the petitioner have been permitted to be produced, whereas the application for permission to file a written statement has been rejected, and in the absence of the written statement, the said documents are of no use.

(iii) That, the Court below has come to the conclusion that there is a delay of about seven years in filing the written statement but, it ought to have seen that the said delay is not attributable to the petitioner, as the earthquake took place in the year 2001, which circumstance was not in the control of the petitioner and in view of the said natural calamity, the file of the case remained closed.

(iv) That, the petitioner has been diligent in pursuing the case and his learned Advocate was remaining present throughout therefore, it cannot be said that the petitioner has been negligent or careless.

(v) That, the file of the case again came on the Board of the trial Court in the year 2007, and no notice has been given to the petitioner regarding this, therefore, the delay in filing the written statement cannot be attributed to the petitioner and his application, has been wrongly rejected.

3.1 In support of the above submissions, reliance is placed on following decisions:

• N. Balakrishnan Vs. M. Krishnamurthy , AIR 1998 SC 3222,

• Chhabi Kulavi and Anr. Vs. Ganesh Chandra Mandal , (2001) 9 SCC 294,

• Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and Ors. , (2006)1 SCC 46,

• Sumtibhai and Ors. Vs. Paras Finance Co. Rg. Partnership Firm Beawer(Raj.) through Smt. Mankanwar W/o. Parasmal Chordia(Dead) and Ors. , 2007(3) GLH 644.

3.2 It is prayed by the learned Counsel for the petitioner that the impugned order be set aside, and the petition be allowed.

4.0 Mr. Jignesh H. Kapadia, learned Counsel for Mr. Harin P. Raval, learned Counsel for respondent No.1 has strongly opposed the grant of the prayers made in the petition, and has submitted as below:

(1) That, there is no doubt that the Court has ample powers to condone the delay in filing the written