Bombay High Court
Mohd.Ashfaque S/O Sk.Ismail vs Adbul Alim S/O Adbul Salam And ... on 20 October, 2012
Bench: V.A. Naik
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.
---------------------------------------------------------------------------------------------------
Shri R. S. Akbani, counsel for the petitioners.
Shri B. N. Mohta, counsel for the respondents.
---------------------------------------------------------------------------------------------------
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.
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
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,
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
