Bombay High Court
Ashokkumar Daulatsingh Madan ... vs Hemant Narayandas Pamnani And Anr on 30 September, 2015
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6869 OF 2013
1 Ashokkumar Daulatsingh Madan ]
Since deceased through legal heirs ]
]
1A] Mina Ashok Madan ]
Age : Major, Occ : Household ]
]
1B] Mohit Ashok Madan ]
Age : Major, Occ : Business ]
ig ]
1C] Manisha Ashok Madan @ Manisha ]
Surendra Gaba ]
Age : Major, Occ : Household ]
]
1D] Rakhi Ashok Madan ]
Age : Major Occ : Household ]
]
All R/o. Shivdarshan Society, Near GPO ]
N.D. Patel Road, Nashik ]..... Petitioners.
Versus
1] Hemant Narayandas Pamnani ]
Age : 59 years, Occ : Agri & Business ]
Chowkmandai, Nashik ]
]
2] Sudama Jodharam Hanswani ]
Age : 55 years, Occ : Business ]
C/o. D.J. Builders 1, Hrishikesh Society ]
Opp. Model Colony, HTP Colleged Road ]
Nashik - 5 ]..... Respondents.
Mr.R M Haridas i/by Mr. Tushar Sonawane for the Petitioners.
Mr. Shriniwas S Patwardhan for the Respondent No.1.
Mr. G S Godbole i/by Mr. Sumit S Kothari for the Respondent No.2.
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CORAM : R. M. SAVANT, J.
DATE : 30th September 2015
ORAL JUDGMENT
1 Rule with the consent of the learned counsel for the parties made
returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the order
dated 13/06/2013 passed by the learned 2 nd Joint Civil Judge, Senior Division,
Nasik by which order the Application (Exhibit 117) filed by the Petitioners
came to be rejected.
3 The facts giving rise to the above Petition can in brief be stated
thus :-
The suit in question being Special Civil Suit No.347 of 1991 has
been filed by the Respondent No.1 - original Plaintiff for specific performance
of the contract/agreement entered into between the Plaintiff and the
Defendant No.1. The subject matter of the said contract/agreement is the land
bearing Survey No.704, Hissa No.1+2/8 (old Survey No.704/2B/1/4/4
admeasuring 20 Ares situated at Nashik. The Plaintiff in the said suit has
alternatively prayed for damages to the tune of Rs.15,25,000/- with 2%
interest from the date of filing of the suit till its realization. The Defendant
No.1 has entered into a contract with the Plaintiff as there was an agreement
to sale between the Defendant No.1 and the Defendant No.2 in respect of the
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said property. In so far as the Defendants are concerned i.e. the Defendant
No.1 and the Defendant No.2, they have filed a joint written statement on
20/03/1992 in which written statement the Defendants have accepted the
agreement to sale executed by the Defendant No.2 in favour of the Defendant
No.1 and have sought to defend the suit by filing the said joint written
statement.
4 At this stage it is required to be noted that on the suit summons
being served, the Defendant No.2 Ashokkumar Daulatsingh Madan had
appeared in the suit and had engaged advocate Shri S L Deshpande who had
filed his vakalatnama on behalf of the Defendant No.2. The Defendant No.1
had also independently engaged an advocate who was appearing for him in the
said suit. The Defendant No.2 died on 27/08/2005. The said date assumes
some significance in the light of the instant application (Exhibit 117).
However, prior to the death of the Defendant No.2 i.e. Ashokkumar
Daulatsingh Madan the suit came to be dismissed for non-prosecution on
11/12/2000 and was thereafter restored on 12/01/2004, by virtue of the order
passed in Civil Misc. Application No.39 of 2001 in which application both the
Defendants had appeared independently and contested the said application.
5 It is also required to be noted that the Defendant No.1 Sudama
Jodharam Hanswani had filed Civil Revision Application in this Court being
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Civil Revision Application No.84 of 2004 challenging the order dated
12/01/2004 passed by the Trial Court restoring the suit. Hence in the said
Civil Revision Application also the Defendant Nos. 1 and the Defendant No.2
had engaged independent advocates and had prosecuted the Civil Revision
Application. The said Civil Revision Application came to be allowed by a
learned Single Judge of this Court by order dated 21/12/2005, albeit only to
the extent of imposing costs on the Plaintiff and in favour of the Revision
Applicant i.e. the Defendant No.1. Hence the Defendant No.2 in his life time
had contested the application for restoration of the suit as also the Civil
Revision Application which had been filed by his co-Defendant i.e. the
Defendant No.1 against the order of restoration of the suit.
6 On the death of the Defendant No.2 in the year 2005, the
Petitioners herein who are his heirs were brought on record and were arrayed
as Defendant Nos.2(A) to 2(D). It is after they being brought on record, that
the Petitioners had filed the instant application (Exhibit 117) for being
permitted to file the written statement and to take a stand which was divergent
to the stand taken by the original Defendant No.2 in the joint written
statement filed on 20/03/1992. The said application has been rejected by the
instant impugned order by the Trial Court. However, the Petitioners had filed
another application (Exhibit 119) for setting aside the "No W.S. Order" and for
being permitted to file their written statement. The said application (Exhibit
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119) came to be allowed by the Trial Court and the Trial Court set aside the
"No W.S. Order" and vide clause (2) of the said order dated 10/09/2013
permitted the Petitioners to file the written statement. However, this Court in
Writ Petition No.7220 of 2014 which is companion to the above Petition has
clarified that in view of the order impugned in the present Petition, the said
direction as contained in clause (2) of the order passed on the Application
(Exhibit 119) would stand eclipsed by the impugned order. By issuing the said
clarification, the said Writ Petition was thereafter dismissed.
7 Be that as it may, in so far as the instant impugned order is
concerned, the Trial Court rejected the application (Exhibit 117) filed by the
Petitioners for the reasons mentioned in the impugned order. The ground
made out by the Petitioners that the signature of the Defendant No.2 has been
forged and that the Defendant No.2 was not even aware of the written
statement being filed did not commend acceptance to the Trial Court. As
indicated above it is the said order dated 13/06/2013 which is taken exception
to by way of the above Writ Petition.
8 Heard the learned counsel for the parties. The main thrust of the
submissions of the learned counsel for the Petitioners Shri Haridas was towards
demonstrating that the Defendant No.2 in his life time was not aware of the
joint written statement filed on behalf of the Defendant Nos.1 and 2, and since
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it is the allegation of the heirs of the Defendant No.2 i.e. the Petitioners herein
that the signature of the Defendant No.2 has been forged, that the Petitioners
should be permitted to file their independent written statement taking a stand
which may be divergent to the stand taken by the original Defendant No.2 in
the joint written statement which was filed in the suit. The learned counsel for
the Petitioners would contend that for the said purpose the Trial Court ought to
have conducted an enquiry by permitting the Petitioners to lead evidence and
ought not to have rejected the application (Exhibit 117) in the manner it is
done. The learned counsel sought to place reliance on the judgment of the
Apex Court reported in (2007) 10 SCC 82 in the matter of Sumtibai and
others v/s. Paras Finance Co. Regd. Partnership firm Beawer (Raj.) Through
Mankanwar (Smt) w/o Parasmal Chordia (Dead) and others. The learned
counsel for the Petitioners sought to place reliance on the observations made
by the Apex Court in paragraph 7 of the said judgment wherein the Apex Court
has held that the legal representatives of a party to the suit have right to take
defence by way of filing an additional written statement and adduce evidence
in the suit.
9 Per contra, the learned counsel appearing for the Respondent No.1
Shri Patwardhan and the learned counsel appearing for the Respondent No.2
Shri Godbole would support the impugned order. The learned counsel
appearing for the Respondents by drawing this Court's attention to the facts
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antecedent to the passing of the impugned order would contend that having
regard to the said facts, no enquiry is necessitated. The sum and substance of
the contention of the learned counsel for the Respondents was that the
Defendant No.2 in his life time never questioned the filing of the joint written
statement on behalf of himself as well as the Defendant No.1. The learned
counsel would contend that the Defendants were also represented by
independent advocates and in so far as the Defendant No.2 was concerned, he
was represented by advocate Shri S L Deshpande till he expired in the year
2005 and thereafter his heirs i.e. the Petitioners engaged advocate Shri Limaye
who was on record till 2010 and thereafter another advocate has been engaged
by them. The learned counsel would question the motives of the Petitioners in
making the said allegation and it was the submission of the learned counsel
that the Petitioners are seeking to take advantage of the fact that in view of
the dismissal of the suit in the year 2000 and since the suit was restored
thereafter in the year 2004, in terms of the Civil Manual the "D" File was
required to be destroyed since the "D" File comprises the papers including
vakalatnama of the parties and the suit summons, that the Petitioners have
now invented a theory that even the suit summons was not served upon the
Defendant No.2 that the vakalatnama was also not filed on behalf of the
Defendant No.2.
10 Having heard the learned counsel for the parties, I have
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considered the rival contentions. The question that is posed in the present
Petition is, whether the Petitioners who are the heirs of the original Defendant
No.2 are entitled to take a stand which is divergent to the stand taken by the
Defendant No.2 in the joint written statement as original filed on behalf of
both the Defendants. In so far as filing of the written statement after the death
of the Defendant No.2 and the heirs of the Defendant No.,2 being brought on
record is concerned, the same is governed by Order XXII Rule 4(2) of the Code
of Civil Procedure. The said provision postulates that the legal representative
who is brought on record of a Defendant is entitled to take a defence
appropriate to his character as the legal representative of the deceased
Defendant. Hence in terms of Order XXII Rule 4(2) of the Code of Civil
Procedure the Petitioners though are entitled to file their written statement
would not be entitled to take a defence which is contrary to their character as
legal representatives of the Defendant No.2. It is to extricate themselves from
this legal position that the Petitioners have come out with a case that the suit
summons was not served on the Defendant No.2 and that the signature of the
Defendant No.2 on the joint written statement filed on behalf of both the
Defendants was forged when in fact the Defendant No.2 was not even aware of
any written statement being filed on behalf of the Defendants in the suit.
11 The question that is required to be answered is whether in the
light of the said allegation any enquiry is warranted. For the answer to the said
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question the following facts would have to be noted. As indicated above, the
suit has been filed in the year 1991, the suit summons were served in the year
1991, the Defendant No.2 appeared in the suit in the year 1991 as also the
Defendant No.1, the joint written statement was filed by them on 20/03/1992.
the Defendant No.2 had engaged advocate Shri S L Deshpande who continued
to appear for the Defendant No.2 till his death i.e. up to the year 2005.
Significantly neither the Defendant No.2 nor the advocate Shri S L Deshpande
made any grievance about the joint written statement which was filed in the
said suit. In fact the Defendant No.2 had affixed his signature on the joint
written statement in the presence of advocate Shri S L Deshpande. As
indicated herein above, the suit came to be dismissed for non-prosecution in
the year 2000 and the application for restoration came to be filed in the year
2001 i.e. Civil Misc. Application No.39 of 2001. Both the Defendants were
served with the notice of the application for restoration, pursuant to which
both the Defendants had independently appeared and prosecuted the said
application. The said application came to be allowed by the Trial Court by
order dated 12/01/2004 and the suit came to be restored. The said order
dated 12/01/2004 passed by the Trial Court came to be challenged by the
Defendant No.1 Sudama Jodharam Hanswani by filing Civil Revision
Application No.84 of 2004. In the said Civil Revision Application also the
Defendant No.2 appeared and was represented by an independent advocate.
As indicated above, the Civil Revision Application was filed by the Defendant
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No.1 and the Defendant No.2 had appeared in the said Civil Revision
Application represented by an independent advocate. The order passed by the
Trial Court restoring the suit as indicated above came to be modified only to
the extent of imposing costs on the Plaintiff to be payable to the Revision
Applicant. The aforesaid facts therefore belie the case of the Petitioners that
the Defendant No.2 was not aware of the suit being filed and was also not
aware of the joint written statement being filed and therefore falsifies the case
of the Petitioners that the signature of the Defendant No.2 was forged by the
Defendant No.1. The Petitioners as rightly contended on behalf of the
Respondents are seeking to take advantage of the fact that some part of the
record has been destroyed in accordance with the Civil Manual after the suit
was dismissed for non-prosecution. The upshot of the above discussion would
be that no enquiry is necessitated into the allegation made by the Petitioners
against the Defendant No.1. If that be so, the filing of the written statement by
the Petitioners who are the legal representatives of the Defendant No.2 would
be governed by Order XXII Rule 4(2) of the Code of Civil Procedure and the
Petitioners i.e. the Defendant Nos.2A to 2D would therefore not be entitled to
take a stand which is divergent to the stand which was taken by the original
Defendant No.2.
12 In so far as the judgment in Sumtibai's case (supra) is concerned,
in my view, the said judgment would not further the case of the Petitioners in
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so far as their claim for being entitled to take a divergent stand to the stand
taken by the Defendant No.2 is concerned. The said case before the Apex
Court concerned the claim of the legal representatives of the original
Defendant to put in an additional written statement. The Apex Court in the
said case was concerned with the issue as to whether the legal representatives
are entitled to file their written statement and was not concerned with the
issue as to whether the legal representatives are entitled to take a divergent
stand to the stand taken by the Defendant No.2. It is in the said context that
the observations made in paragraph 7 of the said judgment would have to be
construed. The said observations cannot be stretched to mean that the legal
representatives of the Defendant No.2 in the instant case would be entitled to
file written statement taking a stand contrary to the stand taken by the original
Defendant No.2.
13 In my view, therefore, the order passed by the Trial Court rejecting
the application (Exhibit 117) does not suffer from any error of jurisdiction or
any other illegality or infirmity for this Court to exercise it's writ jurisdiction
under Article 227 of the Constitution of India. The above Writ Petition is
accordingly dismissed. Rule discharged. Since the R & P has been called for by
this Court, the same is directed to be sent back forthwith.
14 At this stage the learned counsel for the Petitioners seeks stay of
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the instant order. The same is opposed by the learned counsel appearing for
the Respondent No.1 and the Respondent No.2 In the facts and circumstances
of the present case, the said prayer is rejected.
[R.M.SAVANT, J]
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Certified to be true and correct copy of the original signed Judgment.
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