Bombay High Court
Sunil Laxman Randhve And Others vs Bapu Bajirao Giri on 19 June, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6620 OF 2016
1. Sunil S/o. Laxman Randhve,
Age : 41 yrs., Occu. Agri.,
2. Subhash S/o. Laxman Randhve,
Age : 50 yrs., Occu. Agri.,
3. Balbhim S/o. Laxman Randhve,
Age : 55 yrs., Occu. Agri.,
4. Pandurang S/o. Laxman Randhve,
Age : 53 yrs., Occu. Agri.,
5. Navnath S/o. Laxman Randhve,
Age : 50 yrs., Occu. Agri.,
6. Narayan S/o. Laxman Randhve,
Age : 60 yrs., Occu. Agri.,
7. Sambhaji S/o. Popat Randhve,
Age : 35 yrs., Occu. Agri.,
8. Shiva S/o. Popat Randhve,
Age : 41 yrs., Occu. Agri.,
9. Smt. Shivbai Balu Randhve,
Age : 40 yrs., Occu. Agri.,
10. Garjabai Laxman Randhve,
Age : 78 yrs., Occu. Agri.,
All above R/o. Bhambhora,
Tq. Karjat, Dist. Ahmednagar.
Through G.P.A. Holder,
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Suresh S/o. Subhash Randave,
Age : 39 yrs., Occu. Agri.,
ٌR/o. Bhambhora,
Tq. Karjat, Dist. Ahmednagar. ...Petitioners.
Versus
Bapu S/o. Bajirao Giri,
Age : 32 yrs., Occu. Agri.,
R/o. Bhambhora,
Tq. Karjat, Dist. Ahmednagar.
Advocate for Petitioners : Shri N.V. Gaware.
Advocate for Respondent : Shri R.R. Karpe.
CORAM : RAVINDRA V. GHUGE, J.
Dated : 19th June, 2017
ORAL JUDGEMENT :-
1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
2. The petitioners are aggrieved by the order dated
11/04/2016, passed by the Trial Court, by which, application
Exhibit 45, filed by original defendant Nos. 1 to 9 and 11,
praying for vacating 'No WS Order' has been rejected.
3. I have heard the submissions of the learned advocates for
the respective sides. Shri Karpe, learned advocate appearing for
the original plaintiff, vehemently opposes this petition and prays
for its dismissal by imposing heavy costs.
4. The respondent / plaintiff has preferred the said suit
seeking perpetual injunction and for restraining the
petitioners / defendants from disturbing his peaceful possession
with regard to the agricultural land, mentioned in the said suit.
No WS order was passed against defendant No. 10 on
25/07/2014, after his appearance on 18/06/2014. No WS
order was passed against defendant Nos. 1 to 9 and 11, on
15/09/2015. Defendant Nos. 1 to 9 and 11, preferred
application Exhibit 45 on 20/03/2015, praying for vacating the
No WS order. By impugned order, the said application is
rejected on the ground that proper reasons have not been
assigned.
5. It is trite law, that if laches or malafide intentions are not
attributed to the conduct of the defendant for delaying to file a
WS, the application for recalling no WS order has to be
considered liberally. The Hon'ble Apex Court in the matter of
Salem Advocates Bar Association, Tamil Nadu Versus Union of
India (AIR 2005 SC 3353) has concluded in paragraph Nos. 21
and 22 as under :
"21. The use of the word 'shall' in Order VIII Rule 1 by
itself is not conclusive to determine whether the provision
is mandatory or directory. We have to ascertain the object
which is required to be served by this provision and its
design and context in which it is enacted. The use of the
word 'shall' is ordinarily indicative of mandatory nature of
the provision but having regard to the context in which it
is used or having regard to the intention of the legislation,
the same can be construed as directory. The rule in
question has to advance the cause of justice and not to
defeat it. The rules of procedure are made to advance the
cause of justice and not to defeat it. Construction of the
rule or procedure which promotes justice and prevents
miscarriage has to be preferred. The rules or procedure
are hand-maid of justice and not its mistress. In the
present context, the strict interpretation would defeat
justice.
22. In construing this provision, support can also be
had from Order VIII Rule 10 which provides that where
any party from whom a written statement is required
under Rule 1 or Rule 9, fails to present the same within
the time permitted or fixed by the Court, the Court shall
pronounce judgment against him, or make such other
order in relation to the suit as it thinks fit. On failure to
file written statement under this provision, the Court has
been given the discretion either to pronounce judgment
against the defendant or make such other order in
relation to suit as it thinks fit. In the context of the
provision, despite use of the word 'shall', the court has
been given the discretion to pronounce or not to
pronounce the judgment against the defendant even if
written statement is not filed and instead pass such order
as it may think fit in relation to the suit. In construing
the provision of Order VIII Rule 1 and Rule 10, the
doctrine of harmonious construction is required to be
applied. The effect would be that under Rule 10 of Order
VIII, the court in its discretion would have power to allow
the defendant to file written statement even after expiry of
period of 90 days provided in Order VIII Rule 1. There is
no restriction in Order VIII Rule 10 that after expiry of
ninety days, further time cannot be granted. The Court
has wide power to 'make such order in relation to the suit
as it thinks fit'. Clearly, therefore, the provision of Order
VIII Rule 1 providing for upper limit of 90 days to file
written statement is directory. Having said so, we wish to
make it clear that the order extending time to file written
statement cannot be made in routine. The time can be
extended only in exceptionally hard cases. While
extending time, it has to be borne in mind that the
legislature has fixed the upper time limit of 90 days. The
discretion of the Court to extend the time shall not be so
frequently and routinely exercised so as to nullify the
period fixed by Order VIII Rule 1, Section 39."
6. It is trite law that in the matters involving immovable
properties, which are a source of livelihood to the litigants, it
would be advisable not to have the suit decreed ex-parte. So
also, the suit at issue cannot be said to be a very old suit in
which it would be too late to recall the No WS order and permit
the filing of the WS. At the same time, the comparative
hardships suffered by the plaintiff also have to be kept in mind
and such hardships can be softened by imposing costs.
7. Considering the above, this petition is partly allowed. The
impugned order dated 11/04/2016, is quashed and set aside
and application Exhibit 45, is allowed on the following
conditions :
(a) Each of the petitioners shall deposit an amount of
Rs. 1,000/- (Total Rupees Ten Thousand) before the Trial
Court on / or before 21/07/2017, as costs, which can be
withdrawn by the plaintiff without any conditions.
(b) Each of the petitioners can / may file their
individual written statements on / or before 21/07/2017,
failing which, the suit would proceed without their WS.
(c) Failure on the part of the petitioners (that is
defendant Nos. 1 to 9 and 11) to comply with either of the
directions set out herein above, would lead the Trial Court
to decide the suit without the WS of the respective
defendants.
8. Rule is made partly absolute.
( RAVINDRA V. GHUGE, J. )
S.P.C.
