Bombay High Court
Watchala Bithhalrao Khaladkar vs Sarubai Gangadhar Mairan, Lrs ... on 25 July, 2017
Bench: S.P. Deshmukh
(Judgment) (1) W.P. No. 05386 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 05386 of 2015
District : Osmanabad
Watchala Vithhalrao Khaladkar,
Age : Adult,
Occupation : Household, .. Petitioner
R/o. Osmanabad, (Original defendant
Taluka & District Osmanabad. no.04)
versus
1. Sarubai Gangadhar Mairan (Died).
2. Basveshwar Gangadhar Mairan,
Age : 59 years,
Occupation : Agriculture / Business,
R/o. Darga Road, Osmanabad,
Taluka & District Osmanabad.
3. Vaijanath Sham Gangadhar Mairan,
Age : 48 years,
Occupation : Business,
R/o. Darga Road, Osmanabad,
Taluka & District Osmanabad.
4. Mahadev Miling Gangadhar Mairan,
Age : 38 years,
Occupation : Business / Agriculture,
R/o. Darga Road, Osmanabad,
Taluka & District Osmanabad.
5. Amar Gangadhar Mairan,
Age : 35 years,
Occupation : Business / Agriculture,
R/o. Darga Road, Osmanabad,
Taluka & District Osmanabad.
6. Gopal Gangadhar Mairan,
Age : 35 years,
Occupation : Business / Agriculture,
R/o. Darga Road, Osmanabad,
Taluka & District Osmanabad.
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(Judgment) (2) W.P. No. 05386 of 2015
7. Mallinath Gangadhar Mairan,
Age : 54 years,
Occupation : Nil,
R/o. Osmanabad,
Taluka & District Osmanabad,
Now residing at Subhash Nagar,
Ring Road, Barshi,
Taluka Barshi,
District Solapur.
8. Ramling Dhondiba Karajkhede,
Age : 60 years,
Occupation : Agriculture &
Business,
R/o. Ganesh Nagar, Osmanabad,
Taluka & District Osmanabad.
9. Rajendra Murlidhar Kirkase,
Age : 48 years,
Occupation : Business,
R/o. Acharya Galli, Osmanabad,
Taluka & District Osmanabad.
10. Ghansham Narayan Takekar,
Age : Adult,
Occupation : Agriculture,
R/o. Ganesh Nagar, Osmanabad,
Taluka & District Osmanabad. .. Respondents
(Nos.01 to 06 -
11. Savita Dadasaheb Kaldate, Original plaintiffs
Age : Adult, &
Occupation : Household, Nos.07 to 11 -
R/o. Ganesh Nagar, Osmanabad, Original defendants)
Taluka & District Osmanabad.
...........
Mr. Balaji S. Shinde, Advocate, holding for
Mr. Anandsingh S. Bayas, Advocate, for the petitioner.
Respondent no.01 died.
Respondents no.02, 03, 07, 08, 09, 10 and 11
served (Absent).
Mr. N.S. Tanwade, Advocate, for respondents
no.04 to 06.
...........
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(Judgment) (3) W.P. No. 05386 of 2015
CORAM : SUNIL P. DESHMUKH, J.
DATE : 25TH JULY 2017
ORAL JUDGMENT :
01. Rule. Rule made returnable forthwith. Heard learned
counsel appearing for parties by consent finally.
02. The petitioner is before this court aggrieved by order
dated 25-09-2014 on exhibit 76 in regular civil suit no. 92 of 2012.
Exhibit 76 had been moved to set aside 'no written statement' order.
The application had been moved belatedly after about three years.
It had been explained that the petitioner is an old and retired lady
having no issue. Further, defendants no.01 and 03 had assured that
no loss would be suffered by her. However, subsequently it was
realized that the matter is amongst family members and her defence
in the same would be necessary. It had further been mentioned that
she was suffering from ailments like diabetes and high blood
pressure. The trial court considered that the application has been
moved belatedly when evidence of the plaintiff is almost over and
plaintiff had examined as many as four witnesses and this is an
attempt to prolong the matter.
03. Mr. B.S. Shinde, learned counsel appearing for the
petitioner, submits that in the interest of justice and to have the
(Judgment) (4) W.P. No. 05386 of 2015
contest on merit, it would be expedient that the application is
allowed subject to payment of costs. It is not a case wherein no
reasons had been given for not approaching earlier. He has placed
reliance on order dated 18th November, 2015 passed by Hon'ble
learned single judge of this court in a writ petition no. 10309 of 2014
among the same parties whereunder this court had set aside the 'no
written statement' order subject to payment of costs. According to
learned counsel for the petitioner, similar treatment be given to the
present petitioner. He further submits that a sum of Rs. 7,500/- has
been deposited in the trial court pursuant to the order passed by this
court in this writ petition.
04. Learned counsel appearing for respondents no.04 to 06
purports to oppose the request. However, he is not in a position to
dispute the veracity of the reasons given under which delay has been
caused and further has not been able to overcome the order in writ
petition with any justifiable reason worth consideration.
05. In the circumstances, having regard to that as observed
in the order in earlier writ petition, plaintiffs had not objected to
filing of written statement, similar is the case in the present petition.
Therefore, it would be expedient to allow the writ petition subject to
payment of costs.
(Judgment) (5) W.P. No. 05386 of 2015
06. As such, the writ petition is allowed in terms of prayer
clauses "B" and "C", subject to payment of costs of Rs. 12,500/-. As
such, the petitioner is supposed to deposit further sum of Rs.
5,000/- in the trial court making aggregate sum of Rs. 12,500/-
together. Said sum of Rs. 12,500/- be appropriated towards costs as
ordered under this order. Respondents - plaintiffs would be entitled
to withdraw the said amount from the trial court. It is expected that
the costs as well as written statement be submitted within a period
of four weeks from the date of receipt of this order by the trial court.
The trial court shall proceed with the suit and decide the same on
merits as expeditiously as possible.
07. Rule made absolute in the above terms.
( Sunil P. Deshmukh )
JUDGE
...........
puranik / WP5386.15
