Bombay High Court
Shri. Ramgulam Chatri Sharma And ... vs Mr. Shahzada Shabbirbhaisaheb ... on 11 February, 2021
Bench: Nitin W. Sambre
5. WP 4269 of 2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4269 OF 2017
Shri Ramgulam Chatri Sharma & Ors. ...Petitioners
Versus
Mr. Shahzada Shabbirbhaisaheb Nuruddin ...Respondents
& Ors.
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Mr. Rohan Savant a/w Prabhakar Jadhav - Advocate for the
Petitioners.
Mr. Mahendra Karnawat a/w Priyanka Khakadia - Advocate for
the Respondent Nos. 1 to 6 .
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CORAM : NITIN W. SAMBRE, J.
DATE : 11th FEBRUARY, 2021.
P.C. :
1. In Special Civil Suit No. 1395 of 2014, which is for
declaration, permanent injunction and cancellation of Sale deed,
Petitioners were proceeded without WS, on April 4, 2016. The
Applications for setting aside No WS order i.e. Exhibits
72,74,76,78 and 80 came to be rejected by the impugned order
dated September 6, 2016. As such, this Petition.
2. The submissions are, the Petitioners were represented
through a Lawyer who was instructed to adopt a Written
Statement tendered by the Defendant No. 23 in the said suit.
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3. The said lawyer remained under impression that he has
filed purshis adopting the written statement filed by Defendant
No. 23, however subsequently, it was discovered that no such
purshis was filed. As such applications Exhibits 72, 74, 76, 78
and 80 came to be moved for permission to place on record the
Written statement. The learned Counsel for the Petitioners then
urged that the Petitioners regret for making an incorrect
statement to the Trial Court about filing of a purshis adopting
the Written Statement of Defendant No. 23, when in fact no
such purshis was placed on record. He submits that the said
discrepancy occurred because the same lawyer is appearing in
suit for the number of Defendants. As such the said lawyer got
confused on the issue of the filing of the purshis.
4. According to the learned counsel, the No WS order was
passed on April 4, 2016 that is after period of about 75 days
from the date of service of summons on the Petitioners.
According to him, there was no intention to delay the filing of
the Written Statement, as even today the Petitioners are ready
and willing to file purshis adopting the Written Statement of the
Defendant No. 23 and that being so, by putting the Petitioners to
certain conditions order impugned dated 06.09.2016, passed by
the learned trial Court below Exhibits 72, 74, 76, 78 and 80 may
be quashed and set aside.
5. While countering the aforesaid submissions, the learned
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Counsel for the Plaintiff-Respondent herein would vehemently
opposed the claim, as according to him an incorrect statement of
fact was made on record before the Trial Court about filing of
the purshis. According to the learned counsel, if the Petitioners
have come up with the unclean hands before the Courts below,
the order impugned can be very much justified. By inviting
attention of this Court to Order 8 Rule 1 of the CPC, the learned
Counsel would urge that there has to be sufficient cause for not
filing the Written Statement within the stipulated period and
such cause must be to the satisfaction of the Trial Court which is
not the case of the Petitioners. Drawing support from the
Judgment of the Apex Court in the matter of the Mohammed
Yusuf Vs. Faij Mohammad & Ors. reported in 2009 (2) ALL MR
486 (S.C.), the submissions are, the order passed by the Courts
below is very much justified and Petition is liable to be
dismissed.
6. Considered rival submissions.
7. Fact remains that the Petitioners have not filed Written
statement and as such were proceeded without WS on April, 4
2016. After about two months of the period, they have moved
applications for setting aside No WS order and same came to be
rejected on September 6, 2016. Of-course the Petitioners have
come out with an incorrect statement of facts before the Court
that the purshis was filed on record thereby adopting the written
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statement of Defendant No. 23. However no such purshis was
located on the record of the Trial Court. As such, Trial Court has
formed an impression that the Petitioners have filed purshis in
the said Court on the issue of filing of Written Statement.
8. The learned counsel for the Petitioners on instructions
made a statement that even today also the Petitioners are ready
to go by their oral submissions made before the Trial Court that
they are ready and willing to adopt the Written statement filed
by the Defendant No. 23 and the said statement be recorded as
undertaking.
9. As such, the claim of the Petitioners that at the relevant
time they have an intention to adopt the Written statement filed
by the Defendant No. 23 can be inferred. However the conduct
of the Petitioners of making an incorrect statement contrary to
the record of filing of purshis needs to be deprecated.
10. Of-course, there is a delay in filing the Written statement.
However, this Court cannot be oblivious to the fact that after
rejection of the prayer of the Petitioners for permission to file a
Written Statement, the other defendants were permitted to place
on record their Written Statements.
11. The Trial in the Suit is yet to commence. In the aforesaid
background, in my opinion, the case for showing indulgence in
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extra-ordinary jurisdiction is made out.
12. The order impugned passed below Exhibits 72, 74, 76, 78
and 80 on September 6, 2016 by the Joint Civil Judge, Senior
Division, Pune is hereby quashed and set aside. Applications
Exhibits 72, 74, 76, 78 and 80 stand allowed by setting aside No
WS order dated 4.4.2016.
13. The statement made by the Petitioners that they are
adopting Written statement of the Defendant No. 23 is accepted
as undertaking to this Court. The Petitioners shall file purshis to
that effect within a period of 4 weeks from today.
14. Each of the Petitioners is directed to deposit costs of
Rs. 5,000/- before the Trial Court, within a period of four weeks,
which the Respondent-Plaintiff is entitled to withdraw.
15. The Petitioners' statement that they shall not seek any
unnecessary adjournments, is also accepted as an undertaking to
this Court. Any unnecessary adjournment by either of the
parties be dealt with by the trial Court by saddening heavy cost.
16. Petition is allowed in above terms.
(NITIN W. SAMBRE, J.)
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