Bombay High Court
Bhagwan Narayan Dhole And Ors. : vs Shakuntala Arjun Dhole And Ors. : 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.2269 OF 2010
Bhagwan Narayan Dhole and ors. : Petitioners
versus
Arjun Narayan Dhole
since deceased through LRs
Shakuntala Arjun Dhole and ors. : Respondents.
Mr. A P Kulkarni for the Petitioners.
Mr. Vimalnath Tiwari for the Respondents.
ig CORAM :
DATE :
R M SAVANT, J.
17th December 2011
ORAL JUDGMENT
1 Rule, with consent of the parties made returnable forthwith and
heard.
2 The above Petition takes exception to the order dated 12/1/2010
passed by the Civil Judge, Senior Division, Baramati by which order the
Application-Exhibit 38 for setting out the "No Writ Statement Order" filed by
the Petitioner No.4 herein i.e. the Defendant No.5 to the Special Civil Suit No.
31 of 2008 came to be rejected.
3 In so far as filing of the written statement is concerned, the
summons was served on the Defendant No.5 on 1/4/2008 and he appeared in
the Court through his advocate on 8/4/2008. Thereafter time was sought to
file written statement till 30/6/2008. On the said day i.e. on 30/6/2008 an
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application was filed for seeking time to file written statement. The said
application it seems was granted and as a last chance time was granted upt to
17/7/2008. However, on 17/7/2008, the Defendant No.5 failed to file his
written statement and the Application Exhibit 33 filed by him for seeking
further time came to be rejected. The Defendant No.5 i.e. the Petitioner No.4
herein thereafter filed an Application Exhibit 34 on 2/8/2008 setting out the
grounds as to why the written statement could not be filed within the time
stipulated by the trial Court. The said Application came to be rejected. This
resulted in the Defendant No.5 filing a Writ Petition in this Court being Writ
Petition No.1573 of 2009. In the said Writ Petition, the advocate appearing for
the Defendant No.5 in the trial Court has filed his own personal affidavit
accepting that on account of the communication gap between the Defendant
No.5 and him, the written statement could not be filed. This Court set aside the
order passed on the Application Exhibit 34 and directed the Defendant No.5 to
file a fresh application for the same relief by relying upon the affidavit filed by
the advocate in this Court. In the light of the said order passed by this Court
dated 16/3/2009, the Defendant No.5 filed a fresh application, to the said
application was appended the affidavit of the advocate filed in this Court as
also the fresh affidavit on the same lines. However, the fresh affidavit was not
affirmed.
4 The trial Court on the basis that though this Court had granted
liberty to the Defendant No.5 to apply afresh for the same relief, but the same
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was on the basis of the affidavit of the advocate, that was required to be filed
in support of the said application, and since the said affidavit was not affirmed,
the trial Court held that the Defendant No.5 has not complied with the order
passed by this Court and has rejected the said Application by the impugned
order dated 12/1/2010.
5 Heard the learned counsel for the parties.
In the instant case, there is no dispute that the Defendant No.5
pursuant to the order passed by this Court dated 16/3/2009 had filed a fresh
application setting out grounds on which he was seeking extention of time.
The said ground was the communication gap between him and his advocate.
The affidavit of the advocate which was filed in this Court was appended to the
said Application. The said application was also sought to be supported by
another affidavit which was on the same lines as the affidavit filed by the
advocate in this Court. However, the said affidavit was not affirmed. The trial
Court as indicated above, on the said ground, has rejected the said application
for setting aside "No Written Statement Order". In my view, since the affidavit
of the advocate filed in this Court was already appended to the application,
rejection of the said application on account of non-affirmation of the affidavit
filed in support of the said application would in my view amount to taking a
hyper technical view of the matter.
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7 In so far as ground set out in the application viz. that there was
communication gap between the advocate and Defendant No.5, the same has
not been disputed by the Plaintiff and the same is also not a ground which is
found not acceptable by the trial Court. However, only on the basis that since
the affidavit in support of the application was not affirmed, that the said
application came to be rejected. It is well settled that procedure is ultimately
an hand made of justice and has to be used to further cause of substantial
justice and not oppress it. In my view, the trial Court in rejecting the said
application Exhibit 38 has taken a hyper technical view of the matter. The
rejection of the said application would have serious consequences for the
Defendant No.5. That cannot be the purport or intent of the rules of
procedure. In any event, it is now well settled that Order VIII Rule 1 of the
Code of Civil Procedure is directory and not mandatory.
8 In that view of the matter, the impugned order dated 12/1/2010
would have to be quashed and set aside and is accordingly quashed and set
aside. Resultantly, the Application Exhibit 38 is allowed. The Written
Statement filed by the Defendant No.5 on 2/8/2008 along with the
Application-Exhibit 34 to be taken on record.
9 By an order dated 29/3/2010 passed in the suit by which order
notice came to be issued to the Respondents, the Petitioners were directed to
deposit an amount of Rs.5000/- which according to the learned counsel for the
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Petitioner, has been deposited and presently lying in deposit in this Court. In
my view, the interest of justice would be served if the Respondents are
permitted to withdraw the said amount as costs. Rule is accordingly made
absolute in the aforesaid terms with parties to bear their own costs. In the
facts and circumstances of the case, hearing of the suit is expedited.
[R.M.SAVANT, J]
