Bombay High Court
Bhuma Jalba Mundkar Died Lrs ... vs Kalimunisabegum Jalil Khan And ... on 7 July, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12415 OF 2016
BHUMA S/O. JALBA MUNDKAR AND OTHERS
VERSUS
KALIMUNISABEGUM W/O. JALIL KHAN AND OTHERS
Advocate for Petitioners : Shri M.D. Godhamgaonkar.
Advocate for Respondent No. 3 to 5 : Shri R.R. Shaikh.
CORAM : RAVINDRA V. GHUGE, J.
Dated : 07th July, 2017
PER COURT :
1. The petitioners are aggrieved by the order dated
31/08/2016, by which, application Exhibit 55, dated
27/04/2016, praying for recalling of the "No written statement"
order dated 20/03/2013, has been rejected.
2. I have heard the learned advocates for the respective
sides.
3. There is no dispute that the suit was instituted in the year
2012 and despite several opportunities, the petitioners /
defendant Nos. 6 to 9 and 11 to 14 failed to file their written
statement. The "No written statement" order was passed on
20/03/2013 and the suit proceeded without their written
statement. It is not disputed that the recording of evidence in
the said suit has still not commenced. Exhibit 55 was filed on
27/04/2016, which is after 3 years and one month from the
date of the "No written statement" order.
4. The Trial Court has rejected Exhibit 55 on the ground
that the delay in filing the written statement cannot be
condoned. The respondents / plaintiffs have raised an objection
that the petitioners have deliberately refrained from filing their
written statement only to delay the matter and cause undue
harassment to the plaintiffs. If the "No written statement" order
is vacated, the suit will be reverted by 3 years causing grave
prejudice and manifest inconvenience to the plaintiffs. In the
alternative, the plaintiffs have prayed for costs at the rate of Rs.
5,000/- (Rupees Five Thousand only) per plaintiff for each year
of delay.
5. On 22/12/2016, this Court has issued notices and
directed the concerned defendants to deposit Rs. 5,000/-
(Rupees Five Thousand only) in this Court. Same has been
deposited. The suit was, however, stayed.
6. It cannot be ignored that the amendments to the Code of
Civil Procedure are with the intention and object of ensuring
that the trial in the suits and proceedings are not delayed.
However, at the same time, it needs to be noted that if a written
statement is not on record and when the suit is with regard to
immovable agricultural land, those defendants who had not filed
the written statement are likely to suffer and would be exposed
to a loss of property or share. The hardships caused to the
plaintiffs can be reduced by imposing costs on the defendants.
7. Considering the above and in order to ensure that the
concerned defendants are not rendered defenceless, I am of the
view that they could be permitted to file a written statement
within a specified period and by imposing costs.
8. As such, this petition is partly allowed. The impugned
order dated 31/08/2016, is quashed and set aside and Exhibit
55 is allowed. The eight defendants shall deposit an amount of
Rs. 15,000/- (Rupees Fifteen Thousand only) before the Trial
Court, in addition to the Rs. 5,000/- (Rupees Five Thousand
only) deposited in this Court, collectively on / or before
29/07/2017, failing which, this order shall stand recalled and
the order dated 31/08/2016 shall stand restored leading to the
dismissal of this petition. They shall also file their written
statement, if not already placed on record, on / or before
29/07/2017. No extension of time would be sought either for
filing the written statement or for depositing the costs.
9. The amount of Rs. 5,000/- (Rupees Five Thousand only)
deposited in this Court, shall stand remitted along with accrued
interest to the Civil Judge (Junior Division), Umri, District
Nanded, forthwith. The plaintiffs shall withdraw both the
amounts without conditions, in equal proportions.
( RAVINDRA V. GHUGE, J. )
S.P.C.
