Bombay High Court
Chandrakant Rajaram Kharote vs Parvatabai Dattatraya Khoje And ... on 3 August, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12573 OF 2016
Chandrakant Rajaram Kharote,
Age-55 years, Occu-Labour,
R/o Belapur (Bk.), Tq.Shrirampur,
Dist.Ahmednagar. -- PETITIONER
Versus
1. Smt.Parvatabai Dattatraya Khoje,
Age-78 years, Occu-Household,
2. Pandharinath Dattatraya Khoje,
Age-48 years, Occu-Labour,
Respondent Nos.1 and 2 R/o Lokmanya
Nagar, Pada No.4, Sai Sanket
Apartment, Room No.404,
Thene (W), Dist.Thane,
3. Mangal Arvind Lakare,
Age-60 years, Occu-Household,
R/o Lakare Galli, House No.588,
Bhingar, Tq. And Dist.Ahmednagar,
4. Lata Ashok Parkhe,
Age-58 years, Occu-Household,
R/o Parkhewadi, P.K.Road,
Mulund (W) - 400080 (Mumbai)
5. Yamuna Sudhakar Bangal,
Age-45 years, Occu-Household,
R/o Gandhakuti Apartment,
Jawalkar, Nagar, Sy.No.85/2,
Parjatak Colony, A.Pimpale Gurav,
Pune 411 061.
6. Somnath Dattatraya Khoje,
Age-52 years, Occu-Labour,
Resp.No.1, 2 and 6 R/o Lokmanya
Nagar, Pada No.4, Sai Sanket
khs/AUGUST 2017/12573-d
Apartment, Room No.404,
Thane (W), Dist.Thane,
(Resp.No.6 is G.P.A. Holder of
Respondent Nos. 1 to 5) - RESPONDENTS
Mr.D.R.Adhav, Advocate for the petitioner.
Mr.K.N.Lokhande, Advocate for respondent Nos.1 to 6.
( CORAM : Ravindra V.Ghuge, J.)
DATE : 03/08/2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is aggrieved by the order dated 18/11/2016 by
which the application praying for permission to file a written
statement has been rejected. The Trial Court thereafter has passed
'No W.S.order" on 18/11/2016.
3. Learned Advocate for the respondents strenuously opposes this
petition and prays for dismissal with heavy costs. Learned Advocate
for the petitioner prays for reducing the costs of Rs.5,000/- which he
has deposited before the Trial Court under the orders of this court
dated 21/12/2016.
khs/AUGUST 2017/12573-d
4. It is obvious that the petitioner / original defendant had
appeared in the suit on 11/04/2016 and was required to file his
written statement within a period of 90 days. Since he was unable to
file the written statement within the said period, he moved an
application Exhibit 11 on 05/08/2016 before the "No W.S. order" was
passed and narrated the reason of the illness of his son, for being
unable to file the W.S. The Trial Court has rejected the application
on the ground that the mandate of Order 8 Rule 1 of the CPC does
not permit filing of W.S. beyond 90 days.
5. In catena of judgments delivered by the Hon'ble Apex Court,
the filing of the written statement is permitted even beyond 90 days
provided malafides, laches and oblique motives are not attributable to
the conduct of the defendant. In the instant case, I do not find any
contention of the plaintiff that the petitioner / defendant has
intentionally avoided filing his W.S. In fact he had attempted to file
the W.S. 3 months before the "No. W.S. Order" was passed.
6. Considering the above, this petition is allowed. The impugned
order dated 18/11/2016 rejecting Exh.11 as well as the "No W.S.
order" dated 18/11/2016, are quashed and set aside. Application
Exh.11 stands allowed. The W.S. tendered alongwith Exh.11 shall be
khs/AUGUST 2017/12573-d
taken on record by the Trial Court and shall be exhibited.
7. The costs of Rs.5,000/- deposited by the petitioner before the
Trial Court shall be withdrawn by the original 6 plaintiffs alongwith
accrued interest in equal shares, without conditions
( Ravindra V.Ghuge, J.)
khs/AUGUST 2017/12573-d
