Smt. Sindhu Tanajirao Patil ... vs Tanajirao Govindrao Patil (Since ...
2011 Latest Caselaw 228 Bom

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                IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL  APPELLATE JURISDICTION




                                                                                 
                          WRIT PETITION NO.6763  OF  2011




                                                        
     Smt. Sindhu Tanajirao Patil (since deceased) through LRS 
                                                      ..    Petitioner
             Versus




                                                       
     Tanajirao Govindrao Patil (since deceased) through LRS
                                                      ..    Respondents

     Mr. Mahindra Deshmukh for the Petitioners




                                          
     Mr. A.M.Kulkarni for the Respondent Nos.1A & 1B
                          ig           CORAM  :  R. M. SAVANT, J.

DATED : 15th December, 2011

ORAL JUDGMENT

1 Rule. With the consent of the parties made returnable forthwith

and heard.

2 The above Petition takes exception to the Order dated 8-6-2011

passed by the Learned Joint Civil Judge Junior Division, Sangli, by

which Order, the Application Exhibit 143 in Special Civil Suit No.525 of

1996 filed by the Petitioner/Defendant for setting aside the "no

additional Written Statement" Order came to be rejected.

3 The Petitioner herein is the Original Defendant No.3 in the suit

filed by the Respondent Nos.1(A) to (1(E) being Special Civil Suit No.

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525 of 1996. The said suit has been filed in the Court of Learned Joint

Civil Judge, Junior Division, Sangli, for claiming the relief of partition,

declaration and possession in respect of the suit property which is

mentioned in paragraphs 2(a) and 2(b) of the plaint. It is the case of the

Plaintiffs that they have 1/7th share in the said suit properties.

4 The Petitioner herein is the brother of the Plaintiff Nos.2 to 4 and

Plaintiff No.1 is the father of the Petitioner. The Petitioner has already

filed his written statement to the plaint as originally filed on 24-2-2000.

The Plaintiffs had moved an Application for amendment of the plaint so

as to incorporate averments that the suit property has been bequeathed

to them by the Plaintiff No.1 by Will dated 1-11-1993 and Codicil dated

24-8-1995. The said amendment application filed by the Plaintiffs came

to be allowed on 17-1-2009. This resulted in the Petitioner filing a Writ

Petition in this Court being Writ Petition No.5920 of 2009 challenging

the same. However, the said Writ Petition came to be withdrawn on

23-2-2010. No additional Written Statement Order came to be passed

against the Petitioner on 21-7-2010. The Petitioner has moved the

instant application Exhibit 143 for setting aside the no additional

Written Statement order on 10-3-2011. The delay is sought to be

justified in the said application by stating that since he had filed the

Petition in this court, the papers were with the Advocate and for some

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reason the said papers could not be collected, which resulted in the

delay of preparation of the said additional Written Statement dealing

with the amended plaint. The Trial Court has rejected the said

application on the ground that there was laxity and gross negligence on

the part of the Petitioner in not collecting the papers from the lawyer

after the Writ Petition came to be disposed of. The Trial Court was of the

view that though the provisions of Order VIII Rule 1 of the Civil

Procedure Code are held to be directory and not mandatory in the case

of Kailash Vs. Nankhu & Ors. reported in 2005 (4) SCC 480. In the

facts of the case, the delay in filing the additional Written Statement

could not be condoned.

     4      Heard the Learned Counsel for the parties.
      


     5      It is required to be noted that in the instant case the plaint has 
   

been amended on 21-9-2009. It is an undisputed position that in so far

as the original plaint is concerned, the Petitioner has filed his Written

Statement. It is further required to be noted that the suit which was

originally filed for partition and possession has now been converted to

one based on title relying upon the alleged Will of the Plaintiff No.1

dated 2-11-1993. In my view, therefore though there is some negligence

and laxity on the part of the Petitioner in filing the said additional

Written Statement, an opportunity be given to the Petitioner to deal

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with the case of the Plaintiffs in the amended plaint. It is not as if the

Petitioner has for the first time applied for filing of the Written

Statement as he has already filed his Written Statement and the

question is only as regards the additional Written Statement which is

required to be filed in view of the amended plaint. It is well settled that

for good and sufficient reasons, the time for filing of the Written

Statement can be extended by the Court.

6 In that view of the matter, the impugned order dated 8-6-2011

would have to be quashed and set aside and is accordingly quashed and

set aside. The Petitioner / Defendant would be entitled to file his

additional Written Statement. The same to be done within a period of 3

weeks from date. The Trial Court to accept the said additional Written

Statement that would be tendered by the Petitioner/Defendant

7 The interest of justice also requires that the Plaintiffs be

compensated for the inconvenience that is caused to them. The

Petitioner/Defendant therefore to pay costs of Rs.3,000/- to the

Plaintiffs to be paid within two weeks from date.

8 Rule is accordingly made absolute in the aforesaid terms with

parties to bear their respective costs.

( R. M. SAVANT, J. )