Bombay High Court
Nitesh Suresh Jain vs Jalgaon City Municipal ... on 29 November, 2017
Bench: V. V. Kankanwadi
(Judgment) (1) W.P. No. 12029 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 12029 of 2017
District : Jalgaon
Nitesh s/o. Suresh Jain,
Age : 37 years,
Occupation : Contractor,
R/o. Cream Centre,
4th Floor,
Ganapati Nagar, Jalgaon, .. Petitioner
Taluka & Dist. Jalgaon, (Original plaintiff)
versus
Jalgaon City Municipal
Corporation, Jalgaon,
Through Commissioner,
Municipal Corporation,
Jalgaon, .. Respondent
Taluka & District Jalgaon. (Original defendant)
...........
Mr. Kishor C. Sant, Advocate, for the petitioner.
Mrs. Chaitali P. Kutti (Choudhari), Advocate, for
the respondent.
...........
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 29TH NOVEMBER 2017
ORAL JUDGMENT :
01. Rule. Rule made returnable forthwith.
Taken up for hearing forthwith with the consent of
both the parties.
(Judgment) (2) W.P. No. 12029 of 2017
02. The petitioner, who is original plaintiff,
is challenging the order below Exhibits 28, 29 and 30
passed in Special Civil Suit No. 73 of 2014 by 5th
Joint Civil Judge (Senior Division), Jalgaon, on 19th
August 2017.
03. The factual matrix are that the plaintiff
has filed the suit for recovery of amount of Rs.
19,59,200/- along with interest of Rs. 58,776/-
against the respondent - Municipal Corporation.
Prior to the suit, a legal notice was issued by the
plaintiff to the respondent on 11.04.2014 which has
been replied by the respondent - Corporation on
08.05.2014. In the said reply, in fact, the
Corporation has admitted its liability to pay but
stated that the Corporation is facing financial
crunches and the amount will be paid after the funds
are made available. Thereafter, the suit came to be
filed. After the suit summons was served on the
Corporation, it appeared through Advocate and took
adjournments for filing written statement. When it
was not filed, the matter was kept for hearing
without written statement. After filing of affidavit
in chief of the plaintiff, the respondent did not
participate in the proceedings and, therefore, the
matter was posted for pronouncement of judgment.
04. Thereafter, for the first time, the
respondent filed an application on 15.10.2016 at
Exhibit 25 for setting aside the order of 'no say'.
The said application came to be allowed, subject to
(Judgment) (3) W.P. No. 12029 of 2017
depositing costs of Rs. 1,000/- within eight days, on
17.12.2016. The said order has also not been
complied by the defendant. According to the
petitioner, in view of the fact that there is no
payment of costs by the defendant, the order below
Exhibit 25 should have been treated as cancelled.
Thereafter also, the matter got postponed and once
again an application has been filed at Exhibit 26 for
allowing the defendant to deposit the cost amount.
It came to be rejected. However, at later stage, an
application was filed at Exhibit 28 seeking
permission to deposit the cost amount. Vide
application Exhibit 29, time for filing written
statement was sought and by application Exhibit 30,
an undertaking was given on behalf of the defendant,
that the written statement will be filed within eight
days.
05. The applications were objected by the
plaintiff. However, taking into consideration the
provisions under Section 148 of the Code of Civil
Procedure, 1908 [For short, "C.P.C.'], the learned
trial Court has allowed the said applications. The
said order is under challenge in this writ petition
by invoking Article 227 of the Constitution of India.
06. It has been vehemently submitted on behalf
of the petitioner - original plaintiff, that once the
application Exhibit 27 for deposit of amount and
adjournment was rejected, though vide Exhibit 25, 'no
say' order was set aside, yet, further stage of
(Judgment) (4) W.P. No. 12029 of 2017
filing Exhibit 28 and allowing the defendant to
deposit cost amount had not arisen. The learned
trial Court had not taken into consideration those
facts and misconceived that the application Exhibit
28 can be considered under Section 148 of the C.P.C.
He also pointed out that earlier when the order of
'no say' was filed and the affidavit of examination
in chief was filed, the matter was posted for
pronouncement of judgment.
07. It has been submitted on behalf of the
respondent - Corporation, that the learned trial
Court has allowed application Exhibit 28 in the
interest of justice since an opportunity should have
been given to the defendant to defend the case.
08. In the say to application Exhibit 25 as well
as to application Exhibit 28, it has been
specifically mentioned that the matter was posted for
pronouncement of judgment. This factual situation is
not denied by the respondent. Further, in order to
support his contention, learned Counsel for the
petitioner has produced the cause list from the
website of the District Court in respect of the said
matter and it appears that from 29.08.2016 to
10.10.2016, the matter was adjourned on five
occasions for pronouncement of judgment. That means,
after the affidavit of examination in chief was filed
by the plaintiff and the respondent had not
participated in further proceedings, hearing of the
case got culminated and the matter was kept for
(Judgment) (5) W.P. No. 12029 of 2017
pronouncement of judgment. Under such circumstance,
none of the further applications i.e. from Exhibit 25
to Exhibit 30 should have been entertained by the
learned trial Court. The learned trial Court cannot
set the clock in anti-clockwise position when the
matter is posted for pronouncement of judgment.
09. The aforesaid position of law has been laid
down in the Full Bench judgment of the Apex Court in
the case of Arjun Singh Vs. Mohindra Kumar & others [AIR 1964 SC
993]. It has been observed, that the opening words of
Order IX Rule 7 are "Where the Court has adjourned
the hearing of the suit 'ex parte'". Obviously they
assume that there is to be a hearing on the date to
which the suit stands adjourned. If the entirety of
the "hearing" of the suit has been completed and the
Court being competent to pronounce the judgment then
and there, adjourns the suit merely for the purpose
of pronouncing judgment under O. XX Rule 1, there is
clearly no adjournment of "the hearing" of the suit,
for, there is nothing more to be heard in the suit.
Further, this Court in the judgment delivered in Writ
Petition No. 07212 of 2011 (Kamalshankar s/o. Kapilshankar
Desai & others Vs. Purushottam s/o. Dagdudas Wani & others) on
08.10.2013, has placed reliance on Arjun Singh's case
(supra) and it has been reiterated that after the
matter has been kept for pronouncement of judgment,
the application for amendment could not have been
entertained.
10. Therefore, in fact, in this case, basically
(Judgment) (6) W.P. No. 12029 of 2017
the order below Exhibit 25 was not as per the
procedure of law and, therefore, the subsequent
question of allowing time to be extended for deposit
of the amount of costs did not arose. It is also to
be noted that by application Exhibit 27, prayer for
presenting written statement and adjourning the
matter came to be rejected on 04.05.2017. Therefore,
in a manner, review of the said order ought not to
have been entertained by the trial Court.
11. Taking into consideration the said legal
position, which has not been considered by the
learned trial Court, it has resulted in passing an
erroneous order which is required to be set aside.
Hence, the writ petition deserves to be allowed.
12. In the result, the writ petition is allowed.
The order passed below Exhibits 28, 29 and 30 in
Special Civil Suit No. 73 of 2014, by 5th Joint Civil
Judge (Senior Division), Jalgaon, on 19th August
2017, is hereby set aside.
13. Rule made absolute in the above terms.
There shall be no order as to costs.
( Smt. Vibha Kankanwadi )
JUDGE
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puranik / WP12029.17
