Bombay High Court
Ulhas Uttamchand Pugliya vs Shri. Prakash Uttamchand Pugliya ... on 26 August, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1759 OF 2016
Ulhas Uttamchand Pugliya,
Aged about 66 years,
Occ: Business,
R/o Civil Lines, Chandrapur,
Tah. & Dist. Chandrapur. ....... PETITIONER
...V E R S U S...
1]
Shri Prakash Uttamchand Pugliya,
Aged about 63 years,
Occ: Business,
R/o Civil Lines, Near Prasang Lawn,
Chandrapur, Tah. & Dist. Chandrapur.
2] Shri Pavitra Uttamchand Pugliya,
Aged about 60 years,
Occ: Chartered Accountant,
R/o Civil Lines, Pugliya Nagar,
Chandrapur, Tah. & Dist. Chandrapur.
3] Shri Pradeep Uttamchand Pugliya,
Aged about 58 years,
Occ: Business,
R/o Samadhi Ward, Chandrapur,
Tah. & Dist. Chandrapur.
4] Sau. Shashi Abhay Khatod,
Aged about 53 years,
Occ: Housewife,
R/o "Saikrupa", Amanshwar Layout,
Shastri Nagar, Akola,
Tah. & Dist. Akola. ....... RESPONDENTS
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Shri M.P. Khajanchi, Advocate for Petitioner.
Shri S.O. Ahmed, Advocate for Respondent No.1.
Shri M.I. Dhatrak, Advocate for Respondent Nos.2 to 4.
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CORAM: R.K. DESHPANDE, J.
th AUGUST, 2016.
DATE: 26
ORAL JUDGMENT
1] Rule, made returnable forthwith. Heard finally by consent of
the learned counsels appearing for the parties.
2] In Regular Civil Suit No.114 of 2012 the trial Court has
passed an order on 01.03.2016. The operative portion of the order which
is reproduced below:
1) Application is partly allowed subject to costs of
Rs.20,000/-. Out of Rs.20,000/-, amount Rs.10,000/-
be paid to Legal Aid and remaining Rs.10,000/- be paid
to other side for causing delay.
2) Prayer for supplying copies of the plaint is rejected.
3) Defendant No.1 shall submit the written statement
within 15 days from the date of order, by paying the
costs, failing which this order will stand vacated for
further final order.
4) No W.S. order is set aside.
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3] It is not disputed by the learned counsels appearing for the
parties that the defendant No.1 had not moved any application for grant
of permission to file written statement. In the absence of such application
being filed, the Court could not have passed an order without recording
the reasons for extending the time to file written statement. Though, the
provision under Order 8, Rule 1 of the C.P.C. is held to be directory, the
Court is required to be satisfied about existence of reasons sufficient and
bona fide to permit filing of the written statement beyond stipulated
period. The defendant has to make out a case for that purpose, which
can be considered by the Court. In the absence of any such application
the Court could not have passed such an order, particularly when there is
a contest involved. The impugned order cannot therefore, be sustained.
It will have to be set aside and the matter will have to be sent back to the
trial court for decision afresh.
4] In the result, the writ petition is allowed. The order dated
01.03.2016 passed by the trial court below Exhibit-60, is hereby quashed
and set aside. The trial court is required to consider the application
under Order 23 Rule 3 of the Code of Civil Procedure filed by the
plaintiff and defendant Nos.3 and 4 for passing the compromise decree.
So also the trial court will have to consider as to whether the suit for
partition and separate possession can be permitted to be withdrawn by
the plaintiff or whether the defendant can prosecute the suit. It is
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informed that the trial court had passed an order on 03.09.2007 of "no
W.S." by the defendant Nos.1 and 3, and the matter was fixed for
evidence. In view of this, the defendant No.1 was required, not only to
file the application for setting aside "no W.S." order, but also a separate
application for grant of permission to file written statement making out
the case therein. All these aspects are required to be considered by the
trial Court which shall be considered by the trial court on its own merits.
No order as to costs.
5] Shri Ahmed, the learned counsel appearing for the
respondent No.1 submits that this Court should grant the defendant No.1
permission to file an application to file written statement. If the provision
of law gives right to file such application, no such permission is required
from the court.
JUDGE
NSN
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C E R T I F I C A T E
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