JUDGMENT :

DEVAN M. DESAI, J.

1. By way of this petition, under Article 227 of the Constitution of India, 1950, the petitioners have prayed to quash and set aside the order dated 12.3.2020 passed below Exh.130 of Special Civil Suit No.9 of 2026 passed by learned Principal Senior Civil Judge, Gondal as well as further prayed to permit to treat Exhibits 23 and 24 as the written statement with affidavit in Special Civil Suit No.9 of 2006.

2. Heard learned advocate Mr. Hriday Buch for the petitioners, learned advocate Mr. Vimal Patel for M/s. VMP Legal for respondent No.1 as well as Mr. Mehul S. Shah learned Senior Counsel assisted by learned advocate Mr. Jenil M. Shah for respondent Nos.2 to 5. Perused the record.

3. The brief facts of the case are as under: -

4. It is the case of the petitioners that defendant Nos.1 to 5 are owners and in possession of an agricultural land bearing Revenue Survey No.46 admeasuring Acre 13- 10 Gunthas situated at Moje Gam-Haripar (Pal), Taluka- Lodhika, District-Rajkot. An agreement to sell dated 18.3.2004 was executed between plaintiff and defendant No.1 and consideration of Rs.10,00,000/- was paid by plaintiff to defendant No.1. Defendant No.1 did not execute the sale deed and defendant No.1 with defendant Nos.2 to 5 executed sale deed dated 07.10.2005 in favor of defendant No.6 and 7. Hence, plaintiff was constrained to file suit praying for specific performance of contract coupled with relief of cancellation of sale deed executed in favor of defendant Nos.6 and 7 and for relief of permanent injunction. Defendant Nos.6 and 7 appeared and filed their written reply and affidavit vide Exh-23 and 24 respectively against injunction application on 25.2.2006. Defendant Nos.1 to 5 appeared and filed written statement vide Exh-36. Thereafter, upon execution of compromise deed dated 13.12.2019 between plaintiff and defendant Nos.1 to 5, suit against defendant Nos.1 to 5 qua specific performance of contract was disposed of by decree dated 13.12.2019. An application (Exh 130) was given by defendant Nos.6 and 7 asking for permission to file written statement. Learned trial Court vide order dated 12.03.2020 rejected the said application. Being aggrieved and dissatisfied with the impugned order, the petitioners - original defendant Nos.6 & 7 are before this Court.

5. Learned advocate for the petitioners would submit that after the change of lawyer of petitioners, a bonafide mistake was noticed and immediately thereafter, Application for acceptance of the written statement was submitted at Exh.130 with the written statement. A discretion is required to be exercised in favor of the petitioners. It is submitted that the petitioners have filed a detailed reply vide Exhibit 23, Affidavit Exhibit 24 on 25.2.2006 against an application under Order 39 – Rule 1 of the Code. The contents of the plaint and Exh.5 temporary injunction application are practically word to word same, except some formal paragraphs. Thus, the defendant Nos.6 and 7 were effectively participating in the proceedings. A reply to the temporary injunction application is almost covering the contents of the plaint.

6. It is further submitted that as defendant Nos.1 to 5 changed their stand and a compromise was arrived at between plaintiffs and defendant Nos.1 to 5. If the impugned order is allowed to stand the petitioner, owner of the land in dispute will suffer irreparable injury.

7. It is submitted that by imposing the appropriate condition, the learned trial Court ought to have allowed the Application Exhibit 130. It is submitted learned trial Court ought to have alternatively permitted to treat / exhibit the reply at Exhibits 23, 24, as the Written Statement with affidavit of the defendant Nos. 6 and 7. Except above, no other submissions are made by the learned advocate for the petitioners.

8. Learned advocate for respondents have submitted that the summons of the suit were served upon defendants and defendants Nos.6 and 7 appeared through learned advocate