Bombay High Court
Shri. Omprakash Mohanlal Rathi ... vs Sau. Shobha Radheshyam Bhutada ... on 14 July, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2462 OF 2016
01] Shri Omprakash Mohanlal Rathi,
Aged 60 years, Occu. Business,
R/o Arjuni (Morgaon), Tah. Arjuni,
District Gondia.
02] Gopal s/o Omprakash Rathi,
Aged 40 years, Occu. Medical Practitioner,
R/o Arjuni (Morgaon), Tah. Arjuni,
District Gondia. .... Petitioners
-- Versus -
01] Sau. Shobha Radheshyam Bhutada,
Aged 55 years, Occu. Agriculturist,
R/o Darapur, Tah. Darapur,
District Amravati.
02] Sau. Meena Purshottam Zamwar,
Aged 50 years, Occu. Agriculturist,
R/o Achalpur Road, Paratwada,
Tah. Achalpur, District Amravati.
03] Shri Shyamsundar Laxminarayan Rathi,
Aged 48 years, Occu. Business & Agriculturist,
R/o Adarsh Medical Stores, Bazar Chock,
Waigaon (Nipani), Tah. & Dist. Wardha. .... Respondents
Shri P.M. Joshi, Advocate for the Petitioners.
Shri K.B. Zinjarde, Advocate for Respondent Nos.1 & 2.
None for Respondent No.3.
CORAM : KUM. INDIRA JAIN, J.
DATE : JULY 14, 2017.
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ORAL JUDGMENT :-
Learned Counsel for petitioners seeks permission to
withdraw application to the extent of petitioner no.2 with liberty
to file an application before the trial Court. In view of withdrawal
of petition by petitioner no.2, controversy is now restricted to
petitioner no.1.
02] Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned Counsel for the parties.
03] This petition takes an exception to the order dated
18/11/2015 passed by the 3rd Joint Civil Judge, Junior Division,
Wardha below Exh.29 in R.C.S. No.129/2014 thereby rejecting an
application preferred by petitioners/defendant nos.1 & 2 to set
aside 'no written statement order'.
04] Learned Counsel for petitioner no.1 submitted that
filing of written statement beyond the period of 90 days
prescribed under Order VIII Rule 1 of the Code of Civil Procedure
can be allowed and the time can be extended by the Court in
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rare and extraordinary circumstances. Learned Counsel submits
that daughter of petitioner no.1 was suffering from serious
ailment and he was the only person to accompany her for
medical treatment, since she is deaf. Submission is that due to
illness and continuing treatment of daughter, petitioner no.1
could not file written statement within time. According to
learned Counsel, trial Court has not considered the compelling
circumstances under which petitioner no.1 had not filed written
statement and wrongly rejected the application. In support
thereof, learned Counsel placed reliance on the following
judgments :
1. Shaikh Salim Haji Abdul Khayumsab vs. Kumar
& Ors. - [2006(1)ALL MR 132 (S.C.)].
2. Sambhaji & Ors. vs. Gangabai & Ors. -
[ 2009(1)ALL MR 921(S.C.)].
3. Bhanusing Vishnu Patil & Ors. vs. Shri Vishwas
Arjun Patil - [2008(3)ALL MR 768].
4. Saileja Ramkrishna Deorankar & Ors. vs.
Deepak Yadavrao Tayade & Anr. in Writ Petition
No.5068/20015 decided on 23/11/2015.
05] Per contra, learned Counsel for respondent nos.1 & 2
submitted that ailment was not so serious and petitioner no.1
ought to have filed written statement within time. It is submitted
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that delay was inordinate and same was not properly explained.
Respondents support the order of rejection of application.
06] With the assistance of the learned Counsel for the
parties, this Court has gone through the averments made in
application [Exh.29] and the order passed thereon. It is not in
dispute that respondents filed a suit for declaration and
permanent injunction. Summons were issued to petitioner no.1/
defendant no.1 and he was served with the same somewhere in
September, 2014. Thereafter, time to file written statement was
sought. From time to time, it was extended. As defendant no.1
could not file written statement, he moved application [Exh.29]
and the same was rejected. Being aggrieved, petitioner no.1 has
preferred this writ petition.
07] It is pertinent to note that along with the application
for permission to file written statement, Medical Certificate of
Ekta, daughter of petitioner no.1, was placed on record. The
Certificate indicates that she was advised rest from 16/10/2014
to 06/08/2015. It is not in dispute that she is a deaf girl. Age of
petitioner no.1 as is shown in the petition is 60 years.
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08] The Hon'ble Supreme Court in case of Shaikh Salim
Haji (supra) observed in paragraph 17 of the judgment as under :
"Next, there must be ever present to the mind the
fact that our laws of procedure are grounded on a
principle of natural justice which requires that men
should not be condemned unheard, that decisions
should not be reached behind their backs, that
proceedings that affect their lives and property should
not continue in their absence and that they should not
be precluded from participating in them. Of course,
there must be exceptions and where they are clearly
defined they must be given effect to. But taken by
and large, and subject to that proviso, our laws of
procedure should be construed, wherever that is
reasonably possible, in the light of that principle."
09] In view of observations of the Hon'ble Supreme Court
in (i) Salem Advocate Bar Association vs. Union of India -
[2003(1) ALL MR 391 (S.C.)], (ii) Sangram Singh vs.
Election Tribunal, Kotah - [AIR 1955 SC 425] and (iii)
Shaikh Salim Haji Abdul Khayumsab vs. Kumar & Ors. -
[2006(1) ALL MR 132(S.C.)] and the above referred
authorities, it is now well settled that in rare and exceptional
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case, time prescribed under Order VIII Rule 1 of the Code of Civil
Procedure can be extended by the Court. In view of Medical
Certificate and the facts narrated by petitioner no.1 in
application for permission to file written statement, this Court
finds that he has sufficiently explained the delay and he can be
allowed to set up his defence in a suit by filing written
statement, as one should not be condemned unheard is the
settled position of law. Accordingly, the following order :
ORDER
I. Writ Petition No.2462/2016 is partly allowed.
II. Impugned order dated 18/11/2015 passed below
Exh.29 by the 3rd Joint Civil Judge Junior Division,
Wardha in R.C.S. No.129/2014 is quashed and set
aside.
III. Application [Exh.29] preferred by petitioner no.1 is
allowed.
IV. Writ petition at the behest of petitioner no.2 being
withdrawn stands disposed of.
V. No costs.
*sdw (Kum. Indira Jain.J.)
