Bombay High Court
Manjulaben Indukumar Ghiya vs Gunwantiben Kishorchandra Shah ... on 3 August, 2021
Bench: Manish Pitale
1/7 18-MCA 363.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
MISC. CIVIL APPLICATION NO. 363 OF 2021
IN
WRIT PETITION NO. 7061 OF 2019
Smt. Manjulaben Indukumar Ghiya
vs.
Gunwantiben Kishorchandra Shah and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. S. S. Alaspurkar, Advocate for applicant/petitioner.
Mr. P. P. Kothari, Advocate for respondent Nos.1 to 3.
CORAM : MANISH PITALE J.
DATE : 03/08/2021
By this application, the applicant (original
respondent in writ petition No. 7061 of 2019) has
sought recalling of judgment and order dated
24/09/2020, passed by this Court in the aforesaid
writ petition. By the said judgment and order, the
writ petition was allowed and the impugned order
passed by the Court below was set aside. This Court
also directed that the suit pending before the Court
below be decided expeditiously and preferably within
a period of one year from 24/09/2020.
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2/7 18-MCA 363.2021
2. The learned counsel appearing for the
applicant first submitted that when this Court
proceeded to decide the writ petition on 24/09/2020,
notice of pendency of the said writ petition was not
served on the original respondent (applicant herein).
Attention of this Court was invited to an order passed
by this Court permitting the original writ petitioners
to place copy of the order passed by this Court in its
pending suit before the Court below. This direction
was given in the backdrop that applicant was
deliberately avoiding the proceedings of this Court.
In this backdrop, it was directed that this Court
would proceed on the basis that there had been
service on the original respondent.
3. It was submitted that when the suit before
the Court below was fixed on 30/09/2020, the
counsel appearing for the original writ petitioner
before the Court below, moved an application for
advancing the date of listing on 10/09/2020 and
thereupon placed the aforesaid order of this Court on
the record of the Court below. It was submitted that
the counsel appearing for the original
respondent/applicant herein was not put to notice
about such advancement in the date of listing of the
suit before the Court below and that therefore, there
was absence of proper notice even on the counsel for
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3/7 18-MCA 363.2021
the original respondent. On this basis, it was
submitted that this Court proceeded to dispose of the
writ petition by judgment and order dated
24/09/2020, in the absence of original the
respondent.
4. Although this Court is not impressed with
the said contention raised on behalf of the original
respondent/applicant herein, in the interest of justice,
this Court gave an opportunity to the learned counsel
appearing for applicant to advance his contention
that the order dated 24/09/2020, passed by this
Court needs to be recalled, for the reason that the
entire factual scenario was not placed before this
Court on behalf of the original writ petitioners.
5. This Court perused the contents of the
present application, wherein at paragraph 21, the
applicant has placed on record dates and events, in
order to demonstrate that the conclusions arrived at
by this Court in the judgment and order dated
24/09/2020, were not justified. It was submitted
that this Court proceeded to hold that the applicant
herein had deliberately delayed the proceedings in
the pending suit before the Court below and that
since the applicant had not acted in a diligent manner
as expected from the litigant, the writ petition stood
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allowed. It was submitted that the impression carried
by this Court was not justified and that a perusal of
the said list of dates and events would show that this
Court ought to recall / review its own judgment and
order dated 24/09/2020.
6. This Court has perused the said list of
dates and events stated in paragraph 21 of the
present application. It is difficult to understand as to
how the said details can absolve the applicant
(original respondent in writ petition) from the
adverse findings rendered in the judgment and order
dated 24/09/2020. There is nothing to dispel the
findings rendered by this Court in the said judgment
and order that while the suit was filed on
03/11/2014, the applicant herein being the original
defendant had appeared in the the Court below
through her Advocate on 09/12/2014 itself.
Thereafter, it appears from the documents that are
placed on record that the applicant filed various
applications before the Court below in the pending
suit. One such application was for rejection of plaint
under Order VII Rule 11 of the Civil Procedure Code
(CPC) and another was an application under Order
VII Rule 14 of the CPC, seeking a direction against
the original writ petitioners to produce certain
documents. It is contended by the learned counsel
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5/7 18-MCA 363.2021
appearing for the applicant that so long as such
applications were pending decision of the Court
below, the applicant was entitled not to file her
written statement. It was submitted that the
application under Order VII Rule 11 was rejected on
03/02/2016 and that the writ petition filed against
the same was eventually dismissed on 07/02/2017.
It was then submitted that the application under
Order VII Rule 14 remained pending for a long time
and that it was eventually rejected on 20/02/2019.
On this basis it was submitted that the Court below
could not have insisted on filing of written statement
of the applicant herein till such time as the said
applications were decided and the challenges raised
there-against were finally put to rest by appropriate
orders of the Courts higher in the hierarchy. This
Court is unable to appreciate the aforesaid stand
taken up on behalf of the applicant. As noted in the
judgment and order dated 24/09/2020, as far back as
on 28/03/2016, the Court below has passed the
specific order directing that the suit would proceed
without written statement. It is also recorded that no
effort was made on behalf of the applicant herein to
seek variation of the said order, in order to file
written statement before the Court below. It is after
taking into consideration the said facts available on
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the record that this Court came to the considered
conclusion that the applicant herein had deliberately
acted in a manner so as to delay the proceedings
before the Court below. Such a litigant could not
then be permitted to turn around and claim that she
had been deprived of filing written statement, which
was detrimental to her interest.
7. This Court has specifically noted in the
order dated 24/09/2020, that although the time
limits specified under CPC for filing written statement
have been held to be directory and not mandatory, it
has been also held that the Courts cannot permit
laxity or gross negligence or deliberate attempts to
derail proceedings before the trial Court to be
condoned, while considering a prayer for filing of
written statement. Adopting a liberal approach in
such matters would be misplaced and it would
amount to placing a premium for such behaviour on
the part of the litigants, who by their conduct desire
to derail the proceedings before the trial Court.
8. Therefore, having heard the learned
counsel appearing for the applicant (original
respondent in the writ petition), this Court is not
convinced that the judgment and order dated
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24/09/2020, needs to be recalled or reviewed in any
manner.
9. In the said judgment and order this Court
has already directed that the proceedings pending
before the Court below shall be expedited and
preferably disposed of within one year from the said
date.
10. In view of the above, there is no merit in
the present application and accordingly it is
dismissed.
JUDGE
KOLHE
