Bombay High Court
Sou Saraswati Gurushantayaa ... vs 3 Jaywant Malappa Chinchole on 17 December, 2011
Bench: R. M. Savant
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lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1270 OF 2011
Sou Saraswati Gurushantayaa Swami ]
Age 49 yrs. Occ-household ]
r/a Mouje Bhandarkavathe ]... Petitioner
Tal South Solapur, Dist. Solapur ] Org. Plaintiff.
Versus
1 Smt.Sulbha Malappa Chinchole ]
Age 52 yrs. Occ Houshold ]
ig ]
2 Yashwant Malappa Chinchole ]
Age 32 yrs. Occ-service ]
]
3 Jaywant Malappa Chinchole ]
Age 30 yrs. Occ education ]... Respondents.
] Org. Defendants
All are r/a 28[B}, Nirapam Society ]
Vijapur Road, Solapur ]
Mr. Shrishail Sakhare for the Petitioner.
None for the Respondents.
CORAM : R M SAVANT, J.
DATE : 17th December 2011
ORAL JUDGMENT :
1 In the above Petition the notices came to the issued on 21/3/2011
and the parties were put to notice that the above Petition may be heard and
disposed of finally at the admission stage. None appears for the Respondents
though served. In view of the narrow controversy that is involved in the above
Petition, this Court deems it fit to take up the Petition for final hearing at the
admission stage.
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2 Hence Rule, returnable forthwith. Heard the learned counsel for
the Petitioner Shri Sakhare.
3 The above Petition takes exception to the order dated 30/04/2010
passed by the 10th Joint Civil Judge, Junior Division, Solapur by which order
"No Written Statement Order" came to be set aside and the Defendants were
permitted to file their written statement on payment of costs of Rs.1000/-
4 Shron of unnecessary details, a few facts can be stated thus :
The Petitioner herein is the original Plaintiff. He has filed Regular
Civil Suit No.502 of 2008 for permanent injunction against the Respondents
herein who are the Defendants to the said suit. It appears that pursuant to the
summons served upon them, the Defendants appeared through their counsel in
the said suit on 24/7/2008 but failed to file the written statement within the
time prescribed by Order VIII Rule 1 of the Code of Civil Procedure. A "No
Written Statement Order" came to be passed on 26/6/2009. Thereafter the
Plaintiff has filed his affidavit in lieu of Examination-in-Chief and in view of the
persistent absence of the Defendants in the said suit, "No Cross Order" came to
the passed against them on 31/7/2009. Thereafter, the Defendants filed the
Application-Exhibit 20 for setting aside the "No Cross Order" on 23/3/2010
which came to be rejected by the trial Court. The Defendants on 17/4/2010
filed the instant Application Exhibit 25. The ground made therein was that one
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of the Defendants was a Government servant, who was busy in the duty
connected with Lok Sabha and State Legislative Assembly Elections. It was
further stated that the dispute between the Plaintiff and the Defendants was
referred to Village Dispute Redressal Committee before whom the Plaintiff had
agreed for re-conveyance of the suit land by executing a sale deed in favour of
the Defendants. Relying upon the said assurance it is the case of the
Defendants that they were waiting for the Plaintiff to re-convey the said
property which has resulted in them not filing the written statement in time.
5 The said application was opposed by the Plaintiff i.e. the Petitioner
herein by filing his reply. The Petitioner pointed out the manner in which the
Defendants were prosecuting the suit. The Plaintiff has averred as regards the
"No Cross Order" passed against the Defendants as also the rejection of the
Application Exhibit 20 for stay of the suit.
6 The said Application Exhibit 25 was considered by the trial Court
and by the impugned order the "No Written Statement Order" has been set
aside. In allowing the said Application, significantly the trial Court has not
adverted to the grounds set out in the application on the basis of which the
setting aside of the "No Written Statement Order" was sought. However, as
can be seen, the trial Court has dwelled into the merits of the case of the
Defendants, and by stating that the suit involves immovable property, and
prejudice would be caused to the Defendants, it they are not allowed to file
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their Written Statement has set aside the "No Written Statement Order". It is
trite that though Order VIII Rule 1 of the Code of Civil Procedure is held to be
directory and not mandatory. It is only for just, sufficient and exceptional
reason that the time to file written statement can be extended by the Court.
7 The impugned order as can be seen has been passed without the
trial Court satisfying itself that the grounds mentioned in the said Application
were just and exceptional and that the circumstances were beyond the control
of the Defendants. In my view, therefore, the interest of justice would be served
if the impugned order is set aside and the matter is remanded back to the trial
Court for de-novo consideration of the Application-Exhibit-25. In view of the
fact that the Defendants have not clarified as to in what capacity one of the
Defendants was working and now he was busy with the Lok Sabha and the
Legislative Assembly Election. The said Defendant would have to clarify the
said position. The trial Court would therefore have to decide the said
Application Exhibit 25 on the touchstone of the well settled principles laid
down by the Apex Court as well as this Court in the matter of extension of time
for filing of the written statement.
8 Parties to appear before the trial Court on 23/1/2012 at 3.00 pm.
The Petitioner/Plaintiff to serve a copy of this order on the Respondents by
10/01/2012. The trial Court thereafter to proceed to decide the said
Application-Exhibit 25 by 28/2/2011 in accordance with law uninfluenced by
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the earlier observations as well as the observations made in the instant order.
Rule is accordingly made absolute with no order as to costs. The above Writ
Petition is accordingly disposed of.
[R.M.SAVANT, J]
