Dnyanoba Mhalappa Kharsade vs Narayan Ashraji Dhas And Another
2017 Latest Caselaw 3445 Bom

                                      {1}                           wp7762-17

 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                     WRIT PETITION NO.7762 OF 2017

 Dnyanoba s/o Mhalappa Kharsade                                PETITIONER
 Age - 75 years, Occ - Agriculture
 R/o Talnyachi Wadi, Taluka - Georai,
 District - Beed

          VERSUS

 1.       Narayan s/o Ashraji Dhas                         RESPONDENTS
          Age - 67 years, Occ - Agriculture
          R/o Talnyanchi Wadi, Taluka - Georai
          District - Beed

 2.    Ramnath s/o Narayan Dhas,
       Age - 46 years, Occ - Agriculture
       R/o Talnyachi Wadi, Taluka - Georai,
       District - Beed
                               .......

Mr. Suhas B. Ghute, Advocate for the petitioner .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 21st JUNE, 2017

ORAL JUDGMENT :

1. Heard learned advocate for the petitioner.

2. The petitioner is before this court challenging order dated

11th January, 2017 passed by Civil Judge, Junior Division, Georai

thereby allowing Exhibit-42 subject to payment of costs of

Rs.2,500/- and the order passed "suit to proceed with without

written statement against applicants of Exhibit-42" has been set

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aside.

3. Learned advocate for the petitioner contends that

application does not contain any plausible reason explaining

lapse on the part of defendants to file application for setting

aside no written statement order, after lapse of almost three

years. He submits that even there is no delay condonation

application. He further goes on to contend that while learned

judge of the trial court has referred to certain documents, those

documents were not on record until say had been filed to

Exhibit-42 by the petitioner. Learned advocate further purports

to contend that petitioner had specifically denied that defendant

had ever been to Pune for treatment or had ever been suffering

any illness. He, therefore, submits that application Exhibit-42

ought to have been rejected by the trial court instead of it being

allowed and, as such, the petitioner is before this court.

4. Perusal of the impugned order shows that the learned

judge has taken into account documents filed along with

application Exhibit-42 and formed an opinion that defendant had

been taking treatment for some disorder. Learned judge further

observed coupled with statements in the application about illness

and the material on record and particularly in the absence of

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material supporting contentions of plaintiff about defendant

having not taking treatment, it would be in the fitness of things

to give an opportunity to file written statement for just decision

and for determination of real controversy between the parties.

5. Reference to the name to be Ramdas and not Ramnath in

certain documents, according to learned judge would not be of

such significance as to ignore contentions on behalf of the

respondents. In the circumstances, the trial court had considered

the material and allowed the application.

6. Trial court, with reference to material on record has formed

its opinion and considered it expedient in its discretion to allow

application Exhibit-42 to have a contest on merits. In the

circumstances, this is not a case of such nature which deserves

to be meddled with under writ jurisdiction.

7. As such, writ petition is not being entertained and stands

rejected.

[SUNIL P. DESHMUKH, J.]

drp/wp7762-17