Bombay High Court
Smt. Nanda W/O Ganesh Bodkhe And ... vs Ashok Bhaskar Bhapkar And Another on 6 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 380 OF 2015
1] Nanda Ganesh Bodkhe,
aged 50 yrs. Occu. Service,
R/o Plot No. 3 New Sneha
Nagar, Wardha Road, Nagpur.
2] Ganesh Rajaram Bodkhe
aged 62 yrs., Occu. Business,
R/o Plot No. 3, New Sneha
Nagar, Wardha Road, Nagpur. PETITIONERS.
VERSUS
1] Ashok Bhaskar Bhapkar,
aged 41 yrs. Occu. Agriculture.
2] Sunita Ashok Bhapkar,
aged 34 yrs., Occu. Housewife,
Both R/o Wathoda Post Butibori,
Distt. Nagpur. RESPONDENTS.
Shri M. P. Kariya, Advocate for the petitioners.
None for the respondents.
CORAM: A. S. CHANDURKAR J.
Dated : JUNE 06, 2016.
ORAL JUDGMENT:
None appears for the respondents though called twice.
2] In terms of notice for final disposal issued on 11.03.2015, the
learned counsel for the petitioners has been heard at length.
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3] The petitioners who are the original plaintiffs had moved an
application below Ex. 30 for striking out the defence raised by the
respondents-defendants on the ground that the defendants had not complied
with the order dated 28.01.2013 passed by the trial Court. By said order
dated 28.01.2013 the defendants were restrained from creating third party
rights in the suit property. According to the petitioners, despite aforesaid
order the defendants had created third party rights subsequent thereto. By
the impugned order the trial Court rejected the prayer for striking out the
defence but instead directed the defendants to deposit a sum of Rs. 4000/-
per month in the Court. This order is under challenge in the present writ
petition.
4] Shri M. P. Kariya, the learned counsel for the petitioners
submitted that the conduct of the defendants was such that their defence was
liable to be struck of. He submitted that defendants having undertaken not
to create third party rights in the suit property had flouted said undertaking.
He further submitted that the direction to deposit Rs. 4000/- per month was
not challenged by the defendants and they were bound to comply with the
same. He then submitted that on 06.01.2016 the statement was made on
behalf of the defendants that amount of Rs. 4000/- per month would be
deposited in this Court. By subsequent order dated 17.02.2016 it was
noticed that the respondents had remained absent and had in fact gone back
on their earlier statement that they were ready to deposit the aforesaid
amounts.
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5] As stated above the respondents have not chosen to appear today
though the matter was called twice. None had appeared on behalf of the
respondents also on 17.02.2016. As noted above the direction to deposit
sum of Rs. 4000/- per month in the Court has not been challenged by the
defendants. On 06.01.2016 this Court granted time to the defendants to
place on record pursis regarding compliance with aforesaid direction of
depositing an amount of Rs. 4000/- per month till December 2015. Same has
not been done. In this situation, the interests of justice could be met by
granting one final opportunity to the respondents to deposit an amount of Rs.
4000/- per month from 21.11.2014 to date within a period of six weeks from
the next date of the proceedings before the trial Court. If this direction is
complied with, the respondents would be entitled to rely upon the defence as
raised. If aforesaid direction is not complied, the application moved by the
petitioners below Ex. 30 shall stand allowed and the defence of the
defendants would stand struck of. Rule is made absolute in aforesaid terms
with no order as to costs.
JUDGE
svk
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