Judgment : 1 Rule, with the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the order dated 28/2/2012 passed by the 2nd Joint Civil Judge, Junior Division, Panvel by which order, Applications (Exhibits 156, 157 and 159) came to be rejected. In so far as the Applications Exhibits 156 and 157 are concerned, the same were for framing Additional Issues; whereas Application Exhibit 159 is concerned, the same is for treating the reply filed to the application for temporary injunction (Exhibit-5) as a Written Statement. 3 It is not necessary to burden this order with unnecessary facts. The facts in brief necessary to be cited for adjudication of the issue raised in the above Petition can be stated thus:- The suit in question i.e. Regular Civil Suit No.145 of 2007 has been filed by the Respondent herein for a declaration and injunction. The declaration sought is as regards the Plaintiff’s ownership and possession of the suit property. In the said suit an application for temporary injunction (Exhibit-5) came to be filed by the Plaintiff. To the said application a reply came to be filed by the Petitioner herein. From the point of the controversy raised in the present Petition, what is relevant to note is that the said reply bears the title that the same is a reply to the permanent and temporary injunction sought by the Plaintiff. The said application (Exhibit-5) for temporary injunction filed by the Plaintiff was rejected. However, in so far as the present Petition is concerned, though the fate of the said application (Exhibit-5) is not relevant, what is of significance to note is that in the order rejecting the application (Exhibit-5) filed by the Plaintiff for temporary injunction, the trial Court has referred to the reply filed by the Petitioner as a reply/written statement. Thereafter the issues in the suit in question came to be framed on 24/10/2008. 4 It is an undisputed position that recording of the evidence is complete and the suit was set down for arguments, and the learned counsel for the Defendant had argued the matter on three occasions. It is at that time the instant Applications (Exhibits 156, 157 and 159) came to be filed. 4 It is an undisputed position that recording of the evidence is complete and the suit was set down for arguments, and the learned counsel for the Defendant had argued the matter on three occasions. It is at that time the instant Applications (Exhibits 156, 157 and 159) came to be filed. 5 In so far as Applications (Exhibits 156 and 157), which were for framing of Additional Issues, the same were opposed on behalf of the Respondent/Plaintiff by contending that there is no question of framing the Additional Issues as the Defendant has not filed her Written Statement. This fact triggered of the Defendant filing Application (Exhibit-159) for treating the reply filed to the Application (Exhibit 5) for temporary injunction as a Written Statement. The sum and substance of the case made out in the said Application was that the Defendant was bonafide labouring under an impression that the said reply was being treated as a Written Statement in view of the fact that a reference was also so made in the order passed on the Application (Exhibit 5) for temporary injunction. It was stated in the said Application that till the reply was filed to the said Application for Additional Issues, the Defendant had no occasion or opportunity of knowing that the suit is being proceeded with as if there is no Written Statement on record. The Application (Exhibit-159) was rejected by the trial Court along with the Applications (Exhibits 156 and 157). The rejection of the Applications (Exhibits 156 and 157) were on the basis that since there is no Written Statement, there was no question of framing of additional issues. In so far as Application (Exhibit 159) is concerned, it was for treating the reply filed to the Application (Exhibit 5) as the Written Statement. The trial Court though accepting the fact that in the order passed on Application (Exhibit 5) the reply was referred to as the Written Statement, however, on the ground that the issues were framed considering the pleadings in the plaint, and that the Defendant had not stepped into the witness box, reached a conclusion that there is no Written Statement filed by the Defendant. The trial Court was of the view that at the fag end such an Application (Exhibit-159) could not be entertained. The trial Court was of the view that at the fag end such an Application (Exhibit-159) could not be entertained. As indicated above, it is the said common order dated 28/2/2012 which is impugned in the present Petition. 6 I have heard the learned counsel for the parties. The learned counsel for the Petitioner Shri Patwardhan would reiterate the case of the Defendant as set out in the Application (Exhibit-159). The learned counsel for the Petitioner would contend that if the reply to the said Application (Exhibit 5) for temporary injunction is not treated as the Written Statement, serious prejudice would be caused to the Defendant. He would contend that the trial Court has proceeded on an erroneous premise that the issues have been framed on the basis of the pleadings in the Plaint and has laid undue emphasis on the fact that the Defendant had not stepped into the witness box. The learned counsel for the Petitioner would rely upon two judgments of a learned Single Judge of this Court (A.S.Oka, J), first of which is an unreported judgment dated 3/5/2007 in Writ Petition No.8286 of 2006, and the second is in the case of KuldeepUmraosingh Ostwal & Anr. v/s Chandrakant N Patel & ors, reported in 2010(Supp.) Bom.C.R. 565 in support of his submission that if a purshis is filed, the reply can be treated as the Written Statement. 7 Per contra, it is submitted by Mr.Patil, the learned counsel appearing for the Respondent/Plaintiff that the Application (Exhibit 159) was filed at the point of time when the suit was set down for arguments and the learned counsel for the Defendant was heard on three occasion, and therefore the said application cannot be countenanced. The learned counsel for the Respondent would contend that a reading of the reply ex facie discloses that it is only a reply to the Application (Exhibit 5) for the temporary injunction and therefore by no stretch of imagination it could be termed as the Written Statement. 8 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. As indicated above, the Defendant herein had filed her reply to the Application (Exhibit 5) for temporary injunction filed by the Plaintiff. 8 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. As indicated above, the Defendant herein had filed her reply to the Application (Exhibit 5) for temporary injunction filed by the Plaintiff. The title to the said reply discloses that it has been termed as a reply to the permanent and temporary injunction that is sought in the said suit. The reply therefore can be said to be a reply to the final relief which was sought in the said suit by way of permanent injunction. In so far as order passed on the said Application (Exhibit 5) is concerned, the trial Court in the said order has referred to the reply as the written statement-cum-reply. Therefore there is substance in the contention of the learned counsel for the Petitioner that the parties had proceeded on the basis of the same being a Written Statement filed in the suit. The trial Court in my view, has erred in observing that since the issues have been framed on the basis of the pleadings in the plaint, there was no Written Statement. The basis for arriving at such a conclusion is not mentioned in the impugned order. If there were to be no Written Statement, then the suit would have to be treated as undefended suit resulting in procedure under Order 8 Rule 10 of the Code of Civil Procedure being followed. Only when there is an assertion of fact and denial of same by the other party which gives rise to an issue, leading to an issue being framed in that regard. 9 In so far as the fact of the Defendant having not entered into the witness box is concerned, the trial Court has mis-directed itself by deducing that since the Defendant had not entered the witness box it must be on the ground that no Written Statement is filed. If the Defendant has not entered into the witness box, the same would at the highest have an impact on the Defendant's case namely, whether the case of the Defendant is to be accepted in the absence of the Defendant entering into the witness box, that would not result in the trial Court deducing that the Defendant has not entered into the witness box as no Written Statement was filed by her. It is also required to be borne in mind that there is no formal order passed in the suit that the same is to be proceeded with in the absence of the Written Statement of the Defendant. This is one more circumstances to indicate that the reply to the Application (Exhibit 5) was being treated as the Written Statement. 10 In so far as the judgments (supra) of the learned Single Judge of this Court are concerned, the same lay down a proposition that if a purshis is filed, that the reply to the application for temporary injunction is to be treated as Written Statement, and if the same is accepted, it would relate back to the date on which the said reply is filed. By the second judgment, the learned Single Judge has held that if there is a delay in filing the purshis, the same cannot be accepted mechanically but the Court concerned would have to consider whether the reasons mentioned for delay in filing the purshis are justifiable. The facts of the present case as indicated above can only lead to a irresistible conclusion that the reply to the Application (Exhibit 5) was being treated as the Written Statement. In my view, therefore, the trial Court had erred in rejecting the Application (Exhibit 159) for treating the reply as Written Statement. Since the applications have been rejected by a common order, the order passed on the Application (Exhibit 159) is required to be quashed and set aside and is accordingly quashed and set aside. Since the order on the Applications (Exhibits 156 and 157) is a consequential order to the order passed on the Application (Exhibit 159), the same is also required to be quashed and set aside and is accordingly quashed and set aside. Resultantly, the Application (Exhibit 159) is deemed to have been allowed and the reply is directed to be treated as Written Statement. In so far as Applications (Exhibits 156 and 157) are concerned, they are restored to file and would be heard denovo by the trial Court by giving an opportunity to the parties. The said denovo hearing to be completed by the trial Court within one week of the first appearance of the parties before the trial Court after the instant order. The parties to appear before the trial Court on 16th July 2012. The said denovo hearing to be completed by the trial Court within one week of the first appearance of the parties before the trial Court after the instant order. The parties to appear before the trial Court on 16th July 2012. The trial Court thereafter to proceed with the suit in question in accordance with law. Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs.