Pharande Promoters And Builders ... vs Rajesh Rajibhai Doshi
2021 Latest Caselaw 12192 Bom

                  Digitally signed
      IRESH       by IRESH
                  SIDDHARAM
      SIDDHARAM   MASHAL
      MASHAL      Date: 2021.09.07
                  12:28:32 +0530



                                                                        10.11916.19 WP.doc

ISM
                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                            CIVIL APPELLATE JURISDICTION


                                          WRIT PETITION NO. 11916 OF 2019


                   PHARANDE PROMOTERS AND BUILDERS                            ....PETITIONERS
                   AND OTHERS

                                 V/s.

                   RAJESH RAJIBHAI DOSHI                                      .....RESPONDENT


                   Mr. Dormaan J. Dalal for the petitioners
                   Mr. K. A. Bhatia for respondent


                                            CORAM : NITIN W. SAMBRE, J.

                                            DATE:      AUGUST 31, 2021.

                   P.C.:

                   1]            Petitioner-defendants in Special Civil Suit No. 1048 of 2013 for

specific performance under section 14 of the Specific Relief Act,

were proceeded without W.S. Their prayer for permission to file

written statement and condoning the delay, moved through exhibit

32 came to be rejected vide impugned order dated 22/08/2019.

10.11916.19 WP.doc

2] Order impugned is assailed alleging misunderstanding as to

the date when the suit proceeded without W.S. My attention is

invited to the Rozanama dated 18/03/2017 so also order passed

below exhibit-1 dated 27/11/2018, that is Plaint wherein suit was

directed to be preceded without W.S. Further contention of Mr.Dalal,

learned counsel for the petitioner-defendant is, even if the

defendant nos. 1 & 2 have appeared on 04/08/2014, documents

were supplied by respondent-plaintiff on 11/11/2016 and as such,

time was required to study said documents. Further contention is,

partner Mr Ramesh Salian who was looking after the proceedings

have resigned and as such proceedings went unattended for want

of appropriate information from the said partner because of

communication gap.

3] As such, Mr. Dalal, while trying to make out a case would urge

that delay caused in placing on record written statement is

unintentional and as such this Court may put petitioner to stringent

conditions while considering the prayer for setting aside order of no

W.S.

10.11916.19 WP.doc

4] While drawing support from apex court judgment in the

matter of Mohammed Yusuf V/s. Faij Mohammad and others

[(2009) 3 Supreme Court Cases 513], he would urge that Court

needs to be sensitive to the right of the petitioner to set up his

lawful defence.

5] While countering the aforesaid submissions, counsel for the

plaintiff respondent would urge that trial court has rejected the

prayer based on views expressed by the Supreme Court. According

to him, Order 8 of Code of Civil Procedure, 1908 are construed

strictly to mean that in case if there is failure to file written

statement within period of 30 days, extension could be granted

only upto 90 days that too for from the date of service of summons

for bona fide reasons. According to him, delay of almost about 4

years in filing written statement is unexplained and as such Court

was justified in rejecting the prayer.

6] I have considered rival submissions.

10.11916.19 WP.doc

7] The fact remains that pursuant to service of suit summons on

defendant Nos. 1 and 2 appearance was entered on 04/08/2014,

however it is claimed that written statement could not be placed

within stipulated time for want of documents from the plaintiff-

which were made available on 11/11/2016. Written statement, even

thereafter was not tendered till 10/04/2019. As such, it can be

inferred from the record that there is unexplained delay of about 5

years tendering written statement on record. Even after the suit

proceeded without W.S. on 27/11/ 2017, the fact remains that the

reasons which are relied on viz. resignation of partner, anomaly in

the Rozanama and the order of no W.S. passed on 18/03/2017 and

27/11/2017 will be of hardly any consequences as order of the

court has to be given privilege over notings in the Rozanama. In

any case even if period of about 7 months in between 18/03/2017

till 27/11/2017 referred above is given latitude, same will be of

hardly any assistance particularly when there is delay of more than

5 years in filing written statement. Retirement of partner as

claimed is also not justified from

10.11916.19 WP.doc

8] I hardly see any illegality or material irregularity which

warrants interference in extraordinary jurisdiction under Article 227

of Constitution of India. The views expressed by the learned trial

court are based on settled principles of law as are in catena of

judgments referred there in.

9] Writ petition as such fails, stands dismissed. No costs.

[NITIN W. SAMBRE, J.]