Kadubai Nivrutti Bankar vs Sumanbai Shivnath Sadhey
2017 Latest Caselaw 3296 Bom

                                                                                     908_WP636916.odt


         
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                              WRIT PETITION NO. 6369 OF 2016

Kadubai Nivrutti Bankar
Age: 62 years, Occu.: Agriculturist,
R/o Bhokar, Tq. Shrirampur,
Dist. Ahmednagar.                                                  ..PETITIONER

               VERSUS

Sau. Sumanbai Shivnath Sadhey
Age: 45 years, Occu.: Agriculturist,
Through her Power of Attorney
Shivnath Baburao Sadhey
Age: 50 years, Occu.: Agriculturist,
R/o Dighi, Post: Yesgaon, Tq. Ganagpur,
Dist. Aurangabad.                                                  ..RESPONDENT

                                      ....
Mr. R.B. Temak, Advocate for petitioner.
Mr. Saeed S. Shaikh, Advocate h/f Mr. S.K. Shaikh, Advocate for respondent.
                                      ....

                                                      CORAM : RAVINDRA V. GHUGE, J.

DATED : 16th JUNE, 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 02 nd March, 2016

passed by the Trial Court by which the application for setting aside the "No

W.S." order dated 27th October, 2015, has been rejected.

1 / 3

908_WP636916.odt

3. I have considered the strenuous submissions of the learned Counsel

for the respective sides.

4. Notice in Regular Civil Suit No. 138 of 2015 was issued on 22 nd May,

2015. It was served on the petitioner/defendant on 11 th July, 2015. She

appeared in the proceeding on 10 th August, 2015. "No W.S." order was passed

on 27th October, 2015.

5. The petitioner filed an application on 13 th January, 2016 at Exhibit

14 praying for setting aside the "No W.S." order and the same came to be

rejected by the impugned order on 02nd March, 2016.

6. It is obvious that the petitioner has been casual while dealing with

the proceedings. Though she is an aged lady, she had appeared through her

son. It is stated in Exhibit 14 that she was old, unwell and was not in a position

to promptly give instructions to her advocate to file a written statement. "No

W.S." order has been passed within 77 days from the date of her appearance in

the Court.

7. The learned Counsel for the respondent has strenuously prayed for

the dismissal of this petition. In the alternative, he prayed for costs.

2 / 3

908_WP636916.odt

8. Considering the above, the comparative hardships and taking into

account the fact that the suit would proceed without a challenge if the petitioner

is restrained from filing their written statement, that this petition is partly

allowed. The impugned order dated 02 nd March, 2016 is quashed and set aside.

The application at Exhibit 14 is allowed on the condition that the petitioner shall

deposit an amount of Rs.5,000/- alongwith her written statement before the

Trial Court on or before 15th July, 2017, failing which this order shall stand

recalled and the impugned order dated 02nd March, 2016 shall stand restored.

9. The respondent would be at liberty to withdraw the amount of cost

deposited, without any condition. Rule is made partly absolute in the above

terms.

( RAVINDRA V. GHUGE, J. ) SSD

3 / 3