Bhatu Sukhlal Wagh vs Hiraman Sukhdeo Bachchav And ...
2016 Latest Caselaw 1553 Bom

                                         1                       WP-12005.15


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                         
                          BENCH AT AURANGABAD

                         WRIT PETITION NO. 12005 OF 2015




                                                 
     Bhatu Sukhlal Wagh (Mali)
     Age: 64 years, Occu. Business,
     R/o. B-10, Arhat Building




                                                
     Ram Maruti Road, Near Shivprasad Hotel,
     Thane (W), Dist. Thane                             ... PETITIONER

              Versus




                                       
     1]       Hiraman Sukhdeo Bachchav
              Age: 63 years, Occu. Retired
                             
              R/o. 104-B, Vikas Apartment,
              Santoshi Mata road,
              Kalyan (W), Taluka-Kalyan
              Dist. Thane
                            
     2]       Sandeep Bhatulal Jaiswal,
              Age: 40 years, Occu. Agri & Business,
              R/o. At Post Ner,
      

              Taluka & Dist. Dhule
   



     3]       Yogesh Ratilal Jaiswal
              Age: 41 years, Occu. Agri & Business,
              R/o. At Post Ner,
              Taluka & Dist. Dhule





     4]       Shaikh Abdul Shaikh Ayyub Khatik
              Age: 44 years, Occu. Agri & Business,
              R/o. At Post Ner,
              Taluka & dist. Dhule                 ... RESPONDENTS





                                 .....
     Mr. Ameya N. Sabnis, Advocate for petitioner
     Mr. M. R. Sonawane, Advocate for respondent No.1
                                 .....

                                   CORAM :   SUNIL P. DESHMUKH, J.

DATE : 15th APRIL, 2016

2 WP-12005.15

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally

with consent of the parties.

2. Petition has been moved by original defendant No.1

against refusal by the trial court to set aside no written

statement order passed respectively on 20th January 2015 on

Exhibit-1 and dated 9th October, 2015 on Exhibit-43 in Special

Civil Suit No. 70 of 2014 instituted by respondent No.1.

3. Learned counsel for petitioner has contended that the

written statement could not be filed in time as the petitioner

had been suffering from various ailments and as such without

letting proper opportunity to the petitioner to file written

statement, orders are untenable.

4. Learned counsel appearing for respondent No.1,

however, opposed the statements of petitioner, stating that the

order was passed in January 2015 and yet application for

setting aside the order has been moved in September-2015.

5. Learned counsel further submits that in support of the

reasons given by the petitioner in his application for setting

aside the order dated 20th January, 2015 at such a belated

3 WP-12005.15

stage, application, also no documents have been placed on

record. He, therefore, requests that no indulgence be given to

the petitioner.

6. Perusal of the impugned order, particularly, on

application Exhibit-43 shows that it is principally for want of

support to the contents in the application for setting aside no

written statement order, that the order has been passed.

7.

It does not appear to be a case wherein the veracity of

the contentions has been seriously doubted. Learned counsel

for respondent No.1, though, attempts to point out that no

documents even in the writ petition have been submitted by

petitioner in support of his contentions, however, is not in a

position to oppose veracity of the contentions.

8. Having regard to that, it appears that the order came to

be passed in January 2015 directing the matter to proceed

without written statement and it is the contentions of petitioner

that he had been not keeping well. The veracity of contentions

has not been doubted with reference to factual position,

looking at the age of the party and that they come from the

distant place from the place where the subject matter of

dispute is situated. The inconvenience caused to the other side

4 WP-12005.15

while setting aside both the orders of no written statement

dated 20th January, 2015 and order dated 9 th October, 2015 on

Exhibit-1 and Exhibit-43 respectively can be taken care of by

making payment of costs.

9. As such, the impugned orders dated 20 th January, 2015

on Exhibit-1 and 9th October, 2015 on Exhibit-43 respectively,

passed by 2nd Joint Civil Judge, Senior Division, Dhule in

Special Civil Suit No. 70 of 2014 are set aside subject to

payment of costs of Rs. 25,000/- to be deposited in the trial

court to be payable to plaintiff, within a period of ten weeks

from the date of receipt of writ of this order. The suit,

accordingly, be proceeded with expeditiously.

10. In case of failure to deposit the costs within stipulated

period, it shall be deemed that the orders impugned in the writ

petition are revived and the suit shall accordingly proceed.

11. With these observations writ petition stands disposed of.

Rule is made absolute in aforesaid terms.

( SUNIL P. DESHMUKH, J. )

sms