- (1.)BY way of present petition, the petitioner challenges the order dated 22nd July 2002 vide which the application of the respondents for permission to file written statement has been granted, subject to payment o payment of costs which are quantified at Rs. 400/- payable to the plaintiff. The petitioner/plaintiff has filed a suit for cancellation of will deed. It is not in dispute that the parties to the suit are related to each other. The plaintiff and the respondent no.1 are brothers of each other.
(2.)THE defendants had received notice of the suit summons on 16th April, 2002. The case was initially fixed on 18th April,2002. On the said date, an application for grant of time to file reply has been made. Thereafter, on 16th July 2002, again, an application for time to file reply was made. However, the said application came to be rejected in view of the amended provisions of Order VIII Rule 1 Civil Procedure Code (in short "the Code"). Thereafter, second application was made on 22nd July 2002 i.e. immediately within a period of one week from the rejection of the earlier application. The same is allowed by the impugned order. Hence the present petition.
Mr. S.J.Khandalkar, learned counsel appearing on behalf of the petitioner contended that the Court below has grossly erred in allowing the application. He submits that for the same prayer, an application was rejected on 16th July 2002 and on the said same facts, second application came to be filed which was allowed on 22nd July 2002. He, therefore, submits that since an application for recalling of an order was not made, the second application was not tenable, in view of the provisions of Section 11 of the Code. Learned counsel for petitioner relies on the judgment of the Apex Court in the case of Satyadhan Ghosal and others vs. Smt. Deorajin Debi and another (AIR 1960 SC 941); of the learned single Judges of this Court in the case of Menomal Sindhi vs. Gangadhar Pannalal Rai (1982 Mh.L.J. 188) and Anandrao vs. Heilmittel Pharmaceuticals (2005 (4) Mh.L.J. 868).

(3.)MR. A.A. Naik, learned counsel appearing on behalf of the respondents submits that the learned trial Court had erroneously rejected the application vide order dated 16th July 2002. He further submits that the Division Bench of this Court in the case of Western Coalfields Ltd.Nagpur vs. Rajkumar Bhiwapurkar (1986 Mh.L.J. 525); and the learned single Judge of this Court in the case of Vivek Mokadam vs. Smt.Kiran Nashine (2007 (6) Mh.L.J. 158), has taken a view that second application seeking permission to file written statement after rejection of earlier application is very much permissible in law. He, therefore, submits that no error whatsoever could be found with the impugned order so as to call interference in the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India.