Nagpur Improvement Trust, Nagpur ... vs Amiya S/O Birbar Lenka
2016 Latest Caselaw 7106 Bom

                                              1                                jg.wp1670.15.odt




                                                                                         
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         : NAGPUR BENCH : NAGPUR.




                                                                 
                         WRIT  PETITION  NO.  1670  OF  2015

    Nagpur Improvement Trust, Nagpur 




                                                                
    through its Chairman, Civil Lines, 
    Sadar, Nagpur. 
    Power of Attorney Holder A. S. Deshbhratar                                   ... Petitioner

           // VERSUS //




                                                 
    Amiya S/o Birbar Lenka    
    Aged 43 years, Occu : Business. 
    C/o. Mr. Mayur Thakkar, 
    Opposite - Yashwant Stadium, 
                             
    Dhantoli, Nagpur.                                                            ... Respondent
    -------------------------------------------------------------------------------------------------
    Shri S. K. Mishra, Senior Advocate with Shri K. C. Deogade, Advocate 
    for the petitioner
      


    None for the respondent 
    -------------------------------------------------------------------------------------------------
   



                                                 CORAM :  PRASANNA B. VARALE, J.

                                                  DATE    : 9-12-2016.





    ORAL JUDGMENT


                     Rule.  Rule made returnable forthwith.  

2. Heard Shri S. K. Mishra, learned Senior Counsel

appearing with Shri Deogade, learned counsel for the petitioner.

3. The petitioner i.e. Nagpur Improvement Trust through its

Chairman challenged the order passed by learned 6 th Joint Civil Judge

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Senior Division, Nagpur dated 28-11-2014.

4. This Court by order dated 1-4-2015 issued notice of final

disposal, but though respondent sole is duly served, none appears for

the respondent. While issuing notice, this Court passed an interim

order in the nature that during the pendency of the petition, the

proceeding of Special Civil Suit No. 691/2012 shall remain stayed.

5.

Brief facts giving rise to the present petition can be

summarized as follow.

The respondent instituted suit in the Court of Civil Judge Senior

Division, Nagpur i.e. Special Civil Suit No. 691/2012 for declaration,

permanent injunction and for recovery of damages and compensation

in the sum of Rs. 45,00,000/-. It was the grievance of the respondent-

plaintiff that the officers of the petitioner - Trust undertook an action

of demolition of the residential premises of the plaintiff illegally and

arbitrarily. Perusal of the record further show that on 3-5-2013,

learned Joint Civil Judge Senior Division, Nagpur passed 'no

written statement' order. The petitioner - Trust filed an application on

7-8-2013. It was submitted in the application that as the defendant

(petitioner herein) is a statutory body consisting of various Sections

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and Divisions and the court matters routed through various Sections

before it reached to the Legal Section and when matter reaches to the

Legal Section, Legal Advisor prepares draft and written statement and

drafts are again sent to Head of Divisions or Sections. It was

submitted that as this process take some time, delay is caused in

attending the Court matters. It is submitted in the application that as

the delay caused was not intentional one and as the matter involves a

serious issue, the applicant - defendant be permitted to file written

statement on record by setting aside the order dated 3-5-2013. The

application was opposed by the plaintiff. On 17-1-2014, though the

learned counsel for the defendant (petitioner herein) was not present

nor the defendant itself was present in spite of repeated call, the

learned Court below considered the reasons submitted in the

application and allowed the application thereby setting aside the order

dated 3-5-2013 subject of costs of Rs. 1,000/-. On 20-3-2014, the

learned lower Court found that in spite of order dated 17-1-2014, the

defendant failed to deposit the costs till that date i.e. 20-3-2014, on

considering this aspect of the matter, the learned lower Court set aside

the order dated 17-1-2014 and further observed that the order dated

3-5-2013 of 'no w. s.' passed against the defendant is still in existence.

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On 16-9-2014, the application was filed seeking extension of time for

depositing the costs imposed vide order dated 17-1-2014. By order

dated 24-9-2014 recording the facts, namely, earlier application was

rejected, subsequently, the defendant failed to deposit the costs and

order dated 20-3-2014 was passed, learned lower Court rejected the

application seeking extension of time. On 28-10-2014, an application

is filed seeking a prayer for setting aside the order dated 3-5-2013 and

for grant of permission to file written statement on record. It is stated

in the application that as the order dated 17-1-2014 was passed in

absence of counsel of defendant and the defendant has no knowledge

about the imposition of costs. It is then stated that order dated

20-3-2014 was also passed in absence of defendant and its counsel

and as such, the defendant was not aware about the orders. It is then

stated in the application that due to the procedural and administrative

aspects, the defendant was unable to take steps within short period. It

is then stated that the court agent would notice the earlier orders only

when the matter was posted for recording the evidence on 16-9-2014.

It was submitted in the application that the bonafide error occurred

in submitting the application seeking extension of time, ultimately, it

was prayed that to set aside the order dated 3-5-2013 and permission

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be granted to file written statement. This application was opposed by

filing say by the respondent herein and plaintiff before the Court

below. Learned 6th Joint Civil Judge Senior Division, Nagpur in his

detail order referring to sequences of events rejected the application.

The learned Court below found that though the application initially

was allowed by the Court subject to payment of costs, the defendant

failed to comply the said order. Learned Court below further found

that the grounds raised in the application were nothing but to indicate

negligence of the defendant. Learned Court below also observed that

as the earlier application was rejected, the second application was not

maintainable. Thus, the learned Court below did not find any favour

with the petitioner-defendant and rejected the application.

6. Shri Mishra, learned Senior Counsel submitted that

though the learned lower Court by order dated 17-1-2014 allowed the

application subject to payment of costs, the petitioner failed to comply

with the order of the Court for the bonafide reasons. It is the

submission of Shri Mishra, learned Senior Counsel that due to the

procedural aspects involved in dealing with cases and as the matter

routes through various Sections at times and due to communication

gap, the officers of the petitioner-Trust failed to attend the Court

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matters. Shri Mishra, learned Senior Counsel further submitted that

the court agent who assist the Legal Advisor of the Trust in attending

the Court matters also failed to notice the order passed by the Court

below thereby allowing the application subject to payment of costs.

Learned Senior Counsel submitted that as there was a communication

gap, application was filed for extension of time and it was also

rejected. Shri Mishra, learned Senior Counsel then submitted that the

petitioner is contesting the suit instituted at the instance of the

respondent for damages. Shri Mishra, learned Senior Counsel further

submitted that as the plaintiff instituted the suit for exorbitant amount

to the tune of Rs. 45,00,000/-, the petitioner be permitted to contest

the suit on merits and filing written statement would be one of the

aspects for better appreciation of the merits of the suit. Shri Mishra,

learned Senior Counsel then submitted that if on technical grounds,

the suit is decided in favour of the plaintiff without having any

opportunity to the petitioner-defendant to contest the suit on merits,

the same would result in serious prejudice to the petitioner. Learned

Senior Counsel then submitted that prayer for damages to the tune of

Rs. 45,00,000/- involves a serious financial implication and as such,

the petitioner be permitted to place on record all the relevant material

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to substantiate its case by way of filing written statement.

7. As stated above, even on earlier dates, none appears for

the respondent. Though the material placed on record clearly show

that learned lower Court granted ample opportunities to the

petitioner-defendant, the petitioner failed to avail these opportunities.

Learned Court below was also justified in observing that the act of the

petitioner authorities was indicative of negligence. Even though these

aspects are considered, there is some merit in the submission of

Shri Mishra, learned Senior Counsel that the petitioner is a statutory

trust and a local authority created for the Nagpur City. Shri Mishra,

learned Senior Counsel was also justified in submitting that the suit

instituted at the instance of the respondent for damages involves a

huge amount and a serious financial implication. Shri Mishra, learned

Senior Counsel was also justified in submitting that decision of the suit

on technical aspects and without having the petitioner-defendant an

opportunity to contest the suit on merits would result in serious

prejudice. Considering all these aspects, I am of the opinion that the

petitioner is entitled for one opportunity. In the result, the order

passed by learned 6th Joint Civil Judge Senior Division, Nagpur dated

28-11-2014 is quashed and set aside. The order dated 17-1-2014 is

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maintained with modification that the order dated 3-5-2013 is set

aside subject to costs of Rs. 25,000/-. The petitioner to deposit costs

of Rs. 25,000/- with the High Court Legal Services Sub Committee,

Nagpur within three weeks from the date of this order. Needless to

state that interim order passed by this Court dated 1-4-2015 stands

vacated.

8.

This Court also makes it clear that the Chairman of the

petitioner - Trust may consider the aspect of initiating action against

erring officers for the act of negligence. The Chairman is also at

liberty to pass order against erring officers in nature of recovery/

penalty if the rules of Trust empower the Chairman to take such an

action.

The petition is disposed of in above terms.

JUDGE

wasnik