2010wp3826.12-Judgment 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3826/2012
PETITIONERS :- 1) Mohd. Ashfaque s/o Sk. Ismail, aged about
43 years, R/o Minimata Nagar, Nagpur.
2) Mohd. Iqbal s/o Sk. Ismail, aged about 38
years, R/o Fulewale, Ganjakhed, Nagpur.
...VERSUS...
RESPONDENTS :- 1) Abdul Alim s/o Abdul Salam, aged about 33
ig years,
2) Abdul Kalim s/o Abdul Salam, aged about
31 years,
Both r/o In front of Kamlesh Trading co.
Ganjakhet Chowk, Nagpur.
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Shri R. S. Akbani, counsel for the petitioners.
Shri B. N. Mohta, counsel for the respondents.
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CORAM : SMT. VASANTI A. NAIK, J.
DATED : 20.10.2012 O R A L J U D G M E N T Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.
By this petition, the petitioners impugn an order passed by the trial Court on 10/03/2012 rejecting an application filed by the petitioners for setting aside the "no reply" order dated 23/06/2011.
::: Downloaded on - 02/08/2016 17:27:47 :::2010wp3826.12-Judgment 2/4 The petitioners are the original non-applicants. Miscellaneous proceedings were filed against the petitioners by the respondents for mesne profits. A suit filed by the respondents against the petitioners was decreed and the petitioners were directed to hand over the possession of the property to the respondents. The trial Court also directed the enquiry into mesne profits. It is informed to this Court that a second appeal filed by the petitioners arising out of the said matter is pending in this Court. Since the petitioners had not filed a reply in the mesne profits case, the trial Court had, on 23/06/2011, passed an order of "no reply". The petitioners had filed an application for setting aside the order dated 23/06/2011, but the said application was dismissed by the impugned order dated 10/03/2012.
Shri Akbani, the learned counsel for the petitioners, submitted that the trial Court should have taken a lenient view in the matter and permitted the petitioners to file the reply which the petitioners had in fact tendered before the trial Court along with the application. The learned counsel for the petitioners seeks a liberal approach so that the mesne profits case could be contested by the petitioners. It is submitted that the petitioner No.2 was looking after the mesne profits case and since the petitioner No.2 was suffering from hepatitis and was advised by the doctor to take rest, the reply could not be filed before 23/06/2011. It is submitted that the respondent No.2 immediately on his recovery filed the reply along with the application for setting aside the order. It is submitted that the trial Court rejected the application ::: Downloaded on - 02/08/2016 17:27:47 ::: 2010wp3826.12-Judgment 3/4 solely on the ground that the application was not supported with the doctor's certificate.
Shri Mohta, the learned counsel for the respondents, supported the order passed by the trial Court and submitted that the trial Court was justified in rejecting the application as in spite of service of summons on the petitioner No.2 on 05/09/2010 and on the petitioner No.1 on 16/03/2011, the petitioners had failed to file the reply till 23/06/2011. It is submitted that the application for setting aside the order dated 23/06/2011 was filed belatedly on 31/10/2011. Since the application was not supported by the doctor's certificate, according to the learned counsel, the trial Court was justified in rejecting the application.
It appears on a perusal of the impugned order and the application for setting aside the order dated 23/06/2011 that the trial Court ought to have granted one more chance to the petitioners to file the reply. In fact, the petitioners had filed an application for setting aside the order dated 23/06/2011 along with the reply and the trial Court ought to have accepted the reply on record. It is always better to permit a party to defend the case rather than proceeding ex parte against the party, as far as possible. The petitioners had clearly stated in the application that the petitioner No.2 was looking after the matter and the petitioner No.2 was suffering from hepatitis at the relevant time. It is submitted that the petitioner No.2 was advised rest and was, ::: Downloaded on - 02/08/2016 17:27:47 ::: 2010wp3826.12-Judgment 4/4 therefore, not able to approach the Court and file the reply. The trial Court should not have disbelieved the petitioners only because the medical certificate was not filed. Since the inaction on the part of the petitioners was not deliberate or intentional, the trial Court ought to have accepted the reply filed along with the application. Merely because the application is supported by the affidavit of the petitioner No.1 and not the petitioner No.2, it cannot be said that the application needs to be rejected. Surely, the petitioner No.1 could have deposed about the illness of the petitioner No.2, who suffered from hepatitis and was asked to take rest. In the facts and circumstances of the case, an opportunity needs to be granted to the petitioners to defend the mesne profits case.
Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned order is quashed and set aside subject to payment of costs of rupees three thousand to the respondents within a period of fifteen days. The costs may be deposited in the trial Court for the sake of convenience. The application filed by the petitioners for setting aside the order dated 23/06/2011 is allowed subject to the payment of the costs.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE KHUNTE ::: Downloaded on - 02/08/2016 17:27:47 :::