Bombay High Court
Shobha Wd/O. Durwas Thulkar vs Deepali Wd/O. Durwas Thulkar And ... on 17 August, 2021
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1457 OF 2021
Shobha wd/o Durwas Thulkar
-Vs.-
Deepali wd/o Durwas Thulkar 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.M.Bahirwar, counsel for the petitioner.
Mr. R.P.Dixit, counsel for respondent Nos.1 to 4.
CORAM : MANISH PITALE, J.
DATE : 17.08.2021
By this petition, the petitioner has challenged
order dated 01/01/2021 passed by the Court of 14 th
Joint Civil Judge, Senior Division, Nagpur, whereby an
application at Exhibit-128 has been allowed.
2. The principal contention raised on behalf of the
petitioner is that the Court below ought not to have
allowed the application, for the reason that the written
statement on record was signed only by respondent
No.2 (original non-applicant No.2) and that if the
impugned order is allowed to operate, the written
statement will have to be treated as filed for all the
non-applicants. The impugned order in the present
case has been filed in a probate proceeding initiated by
the petitioner. The documents on record show that the
written statement on record states that it is a written
statement on behalf of the defendants. There is no
dispute about the fact that the written statement was
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signed only by respondent No.2 and not the other
non-applicants before the Court below. The recording
of evidence proceeded in the matter and when the
process of recording evidence was almost complete, a
pursis was filed on behalf of the respondents, signed by
all the respondents, stating that the written statement
was in fact filed on behalf of all of them, although
mistakenly it was signed only by respondent No.2 and
not the other respondents. An application was also filed
on behalf of the respondents to adopt the written
statement already on record, signed by respondent
No.2.
3. The learned counsel appearing for the petitioner
has relied upon judgment of the Hon'ble Supreme Court
in the case of Atcom Technologies Ltd. v. Y.A.
Chunawala & Co., reported in (2018) 6 SCC 639. It is
submitted that prejudice will be caused to the petitioner
if the impugned order is not interfered with, because it
is at the fag end of the proceedings that amends were
sought to be made on behalf of the respondents, when
there was clear admission in cross-examination of
respondent No.1 that the written statement was not
signed by her and that it was signed only by respondent
No.2.
4. On the other hand, the learned counsel
appearing for the respondents submitted that no
prejudice will be caused to the petitioner for the reason
that the witnesses in the present matter have been
cross-examined and questions have been put to the
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witnesses on the merits of the matter. It was further
submitted that perusal of the written statement would
show that the statement made in the pursis regarding
mistake on the part of the respondents in failing to sign
the written statement, except respondent No.2, is borne
out by the record. It was submitted that the Court
below correctly distinguished the present case from the
facts of the case in the aforesaid judgment rendered by
the Hon'ble Supreme Court. Apart from this, reliance
was placed on the judgment of this Court in the case of
Vimalkumar Nathmal Goenka v. Vinod Kumar Nathmal
Goenka and others, reported in AIR 1999 Bom 51.
5. Having heard the learned counsel for the rival
parties and on perusal of the impugned order, this
Court is of the opinion that since the endeavour of the
Court in legal proceedings, including probate
proceedings, is to ascertain the truth of the matter,
emphasis ought to be on an approach that would
further the ends of justice, rather than placing emphasis
on hyper technicalities.
6. A perusal of the written statement in the present
case would show that it is stated to be written
statement on behalf of respondents/non-applicants.
The prayers made in the application for grant of probate
have been denied and the case of the respondents has
been stated as per their version in the written
statement. There is no dispute about the fact that only
respondent No.2 signed the aforesaid written
statement. Respondent No.1 as well as respondent No.2
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in their cross-examination conceded to the said
position, but a pursis was placed on record and
thereafter, an application before the Court below,
stating that absence of signatures of all the respondents
on the written statement was a mistake, although the
respondents desired that the written statement be
treated as filed on behalf of all the respondents.
7. This aspect shows that the present case is clearly
distinguishable from the case in which the Hon'ble
Supreme Court delivered judgment in the case of Atcom
Technologies Ltd. v. Y.A. Chunawala & Co. (supra). In
the said case, the Hon'ble Supreme Court found that
there were two suits that were proceeding between the
parties in which an order was passed for grant of ex
parte decree in the face of no written statement filed on
behalf of the defendants. It is recorded that in one of
the suits an application seeking condonation of delay
was rejected and the said matter had attained finality
up to the Hon'ble Supreme Court. In the said matter
arising from the companion suit, the Hon'ble Supreme
Court found that the defendants had been recalcitrant
and that in fact no written statement was filed on behalf
of the defendants. In the present case, it is not a matter
of no written statement being on record while the
probate application proceeded towards its finality, but a
mistake on the part of respondents in failing to sign the
written statement, except respondent No.2. The
contents of the written statement and its heading
stating that it was a written statement on behalf of the
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defendants are factors indicating that the stand taken in
the pursis and the application at Exhibit-128 was bona
fide. Therefore, the present case is clearly
distinguishable.
8. The learned counsel for the respondents is
justified in relying upon the judgments of this Court in
the case of Vimalkumar Nathmal Goenka v. Vinod
Kumar Nathmal Goenka and others, wherein emphasis
is placed on an endeavour on the part of the Court to
decide the litigation between the parties on merits.
Therefore, this Court is of the opinion that the
impugned order cannot be said to be erroneous.
9. Accordingly, the writ petition is dismissed. No
costs.
JUDGE
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