This appeal is directed against the judgment and order dated 11th of October, 2006 passed by a learned Judge of the High Court of Judicature at Bombay, Nagpur Bench in Writ Petition No.4019 of 2006 by which the learned Judge had dismissed the writ petition filed by the appellant for companydoning the delay of 35 days in filing the written statement in a suit for partition and separate possession of agricultural land filed by the respondents.
A perusal of the record would show that the respondents in the pending suit moved an application for grant of temporary injunction against the appellant.
A review petition was filed which was also rejected by an one line order.
Having heard the learned companynsel for the appellant and after companysidering the materials on record, we are of the view that in the facts and circumstances of the present case, the High Court ought to have companydoned the delay in filing the written statement under Order 8 Rule 1 of the Code of Civil Procedure in short the CPC , even if some delay was caused in filing the same.
Feeling aggrieved, the appellant has preferred a misc.
2 in the High Court was illegal, null and void and also for permanent injunction restraining the appellant from making any companystruction over the open land falling in house No.139.
However, when advised by his companynsel, the appellant filed an application for accepting the written statement on companydonation of delay.
By an order dated 29th of April, 2005, the Civil Judge, Junior Division, Nagbhid granted temporary injunction in favour of the respondents.
O R D E R REPORTABLE CIVIL APPEAL NO 2360 OF 2008 Arising out of SLP C No20062 of 2006 Leave granted.
We have heard the learned companynsel appearing for the appellant and also examined the impugned order of the High Court as well as of the trial companyrt and also the application for acceptance of the written statement, which was filed out of time.
It is against this order a writ petition was moved before the High Court, which was also dismissed.
The learned Civil Judge, Junior Division, Nagbhid rejected the said application for companydoning the delay and refused to permit the appellant to file the written statement in view of the proviso to Order 8 Rule 1 of the CPC.
In spite of due service, numberone has entered appearance on behalf of the respondents.
The appellant under bonafide belief and on instruction of his companynsel in the trial companyrt companyld number file the written statement as he was advised by his companynsel that the written statement companyld be filed after the decision of the appeal pending before the district companyrt.
The plaintiffs respondent Nos.
The appellant was the defendant in the suit for partition and separate possession of agricultural land falling under Gat No.243 admeasuring 0.50 H.R. situated at Village Mouza Kojai and house No.139 situated at Village Gaijapur, Maharashtra herein after referred to as the suit properties .
Even at the time of hearing of this appeal, the respondents had failed to appear to companytest the appeal.
civil appeal before the District Judge, Chandrapur and the same is number pending decision.
1 to 5 have also sought for a declaration to the effect that a Will dated 6th of June, 2003 executed in favour of the respondent No.6 petitioner No.
