Bombay High Court
Patloba Madhavrao Munde And ... vs Pranav Suryabhan Wange And Others on 21 July, 2017
Bench: S.P. Deshmukh
1 W.P.No.7934/17
UNREPORTED
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.7934 OF 2017.
1) Patloba S/o Madhavrao Munde,
Age 55 years, Occ.Agriculture,
2) Sau. Sumanbai W/o Patloba Munde,
Age 50 years, Occ.Household,
3) Dhanraj S/o Patloba Munde,
Age 31 years, Occ.Advocate. ... Petitioners.
Versus
1) Pranav S/o Suryabhan Wange,
Age 20 years, Occ.Education,
2) Suryabhan S/o Ningaram Wange,
Age 53 years, Occ.Agri.,
3) Sumitrabai W/o Suryabhan Wange,
Age 45 years, Occ.Agril. &
Household,
4) Sudarshan S/o Suryabhan Wange,
Age 30 years, Occ.Agril.
All R/o Shirshi (B) Tq.Sonpeth,
Dist.Parbhani.
5) Sau. Sarika W/o Sachin Malwad,
Age 28 years, Occ.Household,
R/o Vikasshil Society, Flat No.503,
A-wing, In front of Astavinayak
::: Uploaded on - 04/08/2017 ::: Downloaded on - 08/08/2017 01:01:05 :::
2 W.P.No.7934/17
Shopee, Kasarwadi, Pune,
Tq. and Dist.Pune.
6) Namrata d/o Suryabhan Wange,
Age 25 years, Occ.Education,
R/o Shirshi (B), Tq. Sonpeth,
Dist.Parbhani. ... Respondents.
...
Mr.R.L.Ade, advocate holding for Mr.A.A.Nimbalkar,
advocate for the petitioners.
Mr.M.P.Kale, advocate for respondents.
...
CORAM : SUNIL P. DESHMUKH,J.
Date : 21-07-2017.
ORAL JUDGMENT
1. Mr.Kale, learned counsel submits that he has
instructions to appear on behalf of all the respondents and
would submit his power accordingly.
2. Rule. Rule returnable forthwith. With the
consent of learned counsel for parties, heard finally.
3. After hearing learned counsel for the parties,
it surfaces that Respondent No.1 has instituted RCS No.55
of 2016 for partition and possession against defendants
including present petitioners who are defendants No.6 to 8
in the same. While suit summons were received at the
end of petitioners, the same had been without requisite
documents. The petitioners had put in their appearance
on 3.2.2017, whereupon it had been realised that it would
be necessary to have proper copies of plaint and
documents filed along with the same in order to enable
the petitioners to file written statement in the suit. A
request at the behest of petitioners to the plaintiffs had
not been heeded. Under the circumstances, an
application Exh.26 dated 5.4.2017 had been moved by the
petitioners seeking directions to plaintiff to supply copy of
plaint along with documents. The request had been
opposed by the plaintiffs and application Exh.26 came to
be rejected on 5.6.2017 and on the very day, 'suit to
proceed without written statement of defendants No.6 to
8' came to be passed on Exh.l.
4. Perusal of impugned order shows that learned
judge has considered that documents are usually supplied
to defendants along with suit summons and it appears
from report by the bailiff the plaint and documents have
been served and has further considered that there is no
rebuttal evidence or material brought on record by the
concerned defendants. The learned judge further appears
to have been swayed by the date of service, date of
appearance and the date of application and considered the
same is procrastination of proceedings.
5. Learned counsel for the petitioners submits
that report of bailiff may be as referred to but it does
not appear that proper and complete copies had been
served and received at the end of defendants No.6 to 8.
Upon appearance it had been realised that there had been
discrepancy in the memo of plaint supplied to the
petitioners and the one on record and also that there are
quite a few documents filed along with the plaint. While
petitioners' request for supply of copies of requisite
documents had not been responded, they had no
alternative but to make an application under Exh.26. The
learned counsel further adverts to that there had been
some correction sought by the plaintiff in the plaint on the
date of making application Exh.26 demonstrating that
there had been discrepancy in the documents supplied.
He further submits that for want of proper documents and
especially proper plaint and other documents, there had
been a handicap to file proper written statement. He
submits that in any case a technical approach should be
eschewed in the matter. Defendants' interest is likely to
be in peril without written statement.
6. He further refers to that defendant Nos.1 to 5
are the parents, children and brothers of plaintiff,
whereas present petitioners are from outside their family
and it is their property at stake in the matter.
7. He as such requests to take a proper view in
the matter and grant the writ petition.
8. Learned counsel for the Respondents,
however, finds it difficult to accede to the request being
made on behalf of the petitioners. The learned judge has
rightly considered, along with the suit summons, the
plaint and the documents are supposed to be served. He
submits that learned Judge has observed that suit
summons were served along with the plaint and
documents. The report of bailiff depicts the same. He
submits that petitioners are trying to delay the
proceedings and are adopting delaying tactics.
9. Application Exh.26 has been moved seeking
copies of plaint and documents, as referred to in order to
enable the petitioners to file proper written statement, a
handicap which has been expressed by the defendants for
filing written statement. If at all there had already been a
supply and request is being made for additional copies, in
such a case, proper way would have been to supply by
taking costs for such supply. In such matters pedantic
approach generally is expected to be eschewed. The
Court it appears has further went on to direct the suit to
proceed without written statement of the present
petitioners.
10. In the scenario it appears to be expedient that
to have contest on merits and for the same let the
petitioners be supplied with copies of documents sought
under Exh.26 on payment of costs and let them file
written statement which they shall lodge after obtaining
copies within a period of four weeks.
11. In the circumstances, the impugned order
dated 5-6-2017 passed below Exh.1 in RCS No.55 of 2016
directing the suit to proceed without written statement
and the other on Exh.26 are quashed and set aside.
Application Exh.26 stands allowed subject to payment of
cost of Rs.1,000/- (Rupees one thousand). Cost to be
deposited within a period of four weeks from the date of
receipt of this order. On receipt of documents, written
statement be filed within four weeks thereafter.
12. Rule made absolute in aforesaid terms.
Sd/-
(SUNIL P. DESHMUKH,J.)
asp/office/wp7934.17
