Bombay High Court
Damodar Surajmal Malpani Thr. ... vs Vinodkumar Nandlalji Biyani on 5 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 6183/2017
Damodar Surajmal Malpani,
aged about 70 Yrs., Occu. Agriculturist,
R/o IUDP, Near Pusad Naka, Washim,
Tq. and Distt. Washim, through power of
attorney holder, Shri Rajukumar Chandmal
Malpani, aged about 44 Yrs., Occu. Agriculturist,
R/o Lal Bahadur Shastri Colony, Lakhada,
Washim. ..Petitioner.
..Vs..
Vinodkumar Nandlalji Biyani,
aged about 58 Yrs., Occu. Agriculturist,
R/o Lal Bahadur Colony, Risod Road,
Washim, at post Tq. and Distt. Washim. ..Respondent.
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Shri Ranjit Singh Gehlot, Advocate h/f Shri A.M. Ghare, Advocate for the petitioner.
Shri S.R. Deshpande, Advocate for the respondent.
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CORAM : Z.A. HAQ
, J.
DATE : 5.1.2018.
ORAL JUDGMENT
1. Heard Shri Ranjit Singh Gehlot, Advocate h/f Shri A.M. Ghare,
Advocate for the petitioner and Shri S.R. Deshpande, Advocate for the
respondent.
2. Rule. Rule made returnable forthwith.
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3. The original defendant has challenged the order passed by the trial
Court by which application filed by the defendant praying for grant of
opportunity to deposit the amount of costs, as ordered by the Court earlier, is
rejected.
4. The defendant failed to file written statement within prescribed
time. The defendant had moved an application praying for condonation of
delay in filing written statement and for taking the written statement on
record. By order dated 16th February, 2016 the trial Court permitted the
defendant to file written statement on record subject to payment of costs of
Rs.300/- to the plaintiff. The defendant failed to pay the amount of costs. On
7th March, 2017, the learned trial Judge recorded that the defendant has not
paid the amount of costs to the plaintiff as per the order dated 16 th February,
2016 and directed that the matter to proceed further. On 10th July, 2017, the
defendant filed an application seeking permission to deposit the amount of
costs in Court and to take the written statement on record. This application is
rejected by the impugned order.
Though it cannot be said that the impugned order suffers from any
illegality or error of jurisdiction, in view of the fact that the learned Advocates
for the petitioner and the respondent have informed that the affidavit in lieu of
evidence of plaintiff is not filed and the civil suit has not progressed, the
following order is passed to sub-serve the ends of justice:
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(i) The impugned order is set aside.
(ii) If the defendant deposits Rs.20,000/- (Rs. Twenty Thousand) before
the trial Court till 19th January, 2018, the written statement of defendant be
taken on record and the amount of Rs.20,000/- (Rs. Twenty Thousand) be
given to the plaintiff.
(iii) If the defendant fails to deposit the amount of Rs.20,000/- (Rs.
Twenty Thousand) till 19th January, 2018, the trial Court shall proceed without
written statement of defendant.
(iv) Considering the nature of claim made by the plaintiff, the trial Court
is directed to dispose the civil suit within six months.
The petition is allowed in the above terms.
In the circumstances, parties to bear their own costs.
JUDGE
Tambaskar.
