Bombay High Court
Dayanand Gyandeo Kadam vs Kishor Ramprasadji Mundada And ... on 4 September, 2017
Bench: R.M. Borde
{1}
wp 7100.13.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7100 of 2013
Dayanand S/o Gyandeo Kadam,
age: 36 years, occu: Agri
R/o Moharga, Tq. Ausa,
Dist. Latur Petitioner
Versus
1 Kishor S/o Ramprasadji Mundada,
Age: 44 years, occu: Agri,
R/o Moti Nagar, Latur
2 Anil S/o Bhimshankarappa Utge
Age: 45 years, occu: Agri
R/o Karanje Gali, Ausa
Tq.Ausa, Dist. Latur
3 Jeevan S/o Limbraj Chavan
Age: 29 years, occu: Agri
R/o Ekambiwadi, Tq.Ausa
Dist. Latur Respondents
Mr. S.S. Halkude advocate for the petitioner
Mr. Sachin Deshmukh advocate for Respondent Nos.1 and 2
_______________
CORAM : R. M. BORDE, JUDGE
(Date: 4th September, 2017)
ORAL JUDGMENT
1 Heard.
{2}
wp 7100.13.odt
2 Rule. With the consent of the parties, petition is taken up
for final disposal at admission stage.
3 The petition is presented by original defendant No.1, taking
exception to the order passed by the Trial Court below Exhibit
53/B, rejecting the application tendered by the petitioner -
original defendant, for setting aside the order of 'No WS'
recorded on 21.2.2011 and directing acceptance of the written
statement presented along with the Application,.
4 The respondent - original plaintiff presented a Suit,
claiming decree of perpetual injunction in respect of land Gat
No.19, admeasuring 17 R to the extent of 11 R southern side.
The suit was presented in the year 2010 and summons came to
be served on the defendants in the year 2011. Since the
defendants could not present written statement within the time
stipulated under the Code of Civil procedure, the trial Court
proceeded to pass an order of 'No WS' on 21.2.2011. The
petitioner - original defendant approached the Court with a
request to set aside the order of 'No WS'. It is contended in the
application that, as a result of family problems faced by the
defendant, he could not look after the litigation diligently and
could not file the Written Statement. The defendant tendered
Written Statement along with the application and requested the
{3}
wp 7100.13.odt
Court to accept the same. However, the Trial Court, noticing that
the reason put forth by the defendant No.1 is not convincing,
proceeded to reject the same.
5 I have perused the order, impugned in the petition. It must
be taken note that the suit presented by the plaintiff relates to
immovable property. It does not appear that the defendant is
willfully or with a view to secure disadvantage, is trying to
protract the litigation. The defendant is not likely to gain in any
manner in delaying the hearing of the suit. However, he is likely
to suffer, if he is not permitted to place his defence on record.
According to me, an opportunity needs to be extended to the
defendant to put forth his defence before the Court so that the
controversy arising in the matter can be resolved on its own
merit. The inconvenience accounted to the plaintiff can be
compensated by directing to make payment of costs.
6 In the circumstances, the Writ Petition is allowed.
7 The order, impugned in the instant petition, passed by the
Civil Judge, Junior Division, Latur on 13.8.2013, is quashed and
set aside and the Application tendered by the petitioner - original
defendant No.1 at Exhibit 53/B shall be deemed to have been
allowed, However, subject to payment of costs of Rs.5,000/- to
{4}
wp 7100.13.odt
the original plaintiff. The amount of costs shall be paid within a
period of three weeks from today.
8 Rule is accordingly made absolute.
(R. M. BORDE, JUDGE)
vbd
