Bombay High Court
Laxman Kushaba Wabale Throguh Lrs ... vs Shivram Kushaba Wabale Through ... on 12 January, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10595 OF 2019
Laxman Kushaba Wabale (Died)
Through his L.Rs.
Gangubai Laxman Wabale and others ...Petitioners
versus
Shivram Kushaba Wabale (Died)
Through his L.Rs.
Fulabai Tabaji Taral and others ...Respondents
.....
Mr. N.B. Narwade, advocate for the petitioners
Mr. S.R. Choukidar, advocate for respondent Nos. 1 to 5
.....
CORAM : V. K. JADHAV, J.
DATED : 12 th JANUARY, 2021
PER COURT:-
1. By consent, heard finally at admission stage.
2. The petitioners-plaintiffs have instituted the suit bearing R.C.S.
No. 192 of 2001 for partition and separate possession. Though
respondent No.4 (original defendant No.4) was duly served with the
suit summons as per the bailiff report vide Exh.16, he remained
absent and therefore, by order dated 13.6.2002 the trial court has
directed that the suit be proceeded exparte against him alongwith
other similarly situated defendants.
3. Learned counsel for the petitioners submits that almost 16
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years thereafter the respondent-original defendant No.4 has filed an
application Exh.157 for setting aside the said exparte order and the
trial court without considering such an inordinate delay has allowed
the application by imposing cost of Rs.2000/-.
4. Learned counsel for the petitioners placed his reliance on the
judgment of the Supreme Court in the case of Atcom Technologies
Limited vs. Y.A. Chunawala and Co. reported in (2018) 7 SCALE
35 wherein the Supreme Court has observed that in terms of the
provisions of Order VIII Rule 1 of Civil Procedure Code, 1908, the
defendant is obliged to present a written statement of his defence
within thirty days from the date of service of summons and the
proviso thereto enables the Court to extend the said period up to
ninety days from the date of service of summons for sufficient
reasons.
5. Learned counsel for the petitioners submits that there are no
averments in the application about the reasons for causing such an
inordinate delay in filing application Exh.157 for setting aside the
exparte order.
6. Learned counsel for respondent No.4 (original defendant No.4)
submits that the petitioners-plaintiffs have instituted the suit for
partition and separate possession and the respondent (defendant
No.4) is one of the members of the joint family. In a suit for partition
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and separate possession, all the parties to the suit, who are
members of the joint family are also the plaintiffs. Learned counsel
submits that the trial court has rightly allowed the application Exh.157
and hearing of the suit is expedited. Respondent-defendant No.4 has
also filed his written statement alongwith the application Exh.157.
The writ petition may be dismissed.
7. I agree that there is an inordinate delay in filing application
Exh.157 for setting aside the exparte order passed way back in the
year 2002. In para No.5 of the impugned order, the trial court has
observed that the respondent (defendant No.4) is one of the
members of the joint family. In the given set of facts and considering
the contentions raised in the written statement, the learned Judge
has observed that the contention of respondent (defendant No.4) is
required to be taken on record. In view of the same, even though
learned counsel for the petitioners has placed his reliance on the
judgment in the case of Atcom Technologies Limited vs. Y.A.
Chunawala and Co. (supra), wherein the Supreme Court has made
observations by referring the provisions of Order VIII Rule 1 of
C.P.C.. However, considering the peculiar facts of the present case, I
am not inclined to interfere in the order passed by the trial court so
far as setting aside of the exparte order against the respondent
(defendant No.4) is concerned. However, considering the inordinate
delay as referred above, it would be just and proper if the costs of
Rs.2000/- is raised up to Rs.30,000/- to be paid by the respondent
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(original defendant No.4) to the petitioners-plaintiffs within four weeks
from the date of this order. Hence, I proceed to pass the following
order:-
ORDER
I. Writ petition is hereby partly allowed.
II. The impugned order dated 28.3.2019 passed by the learned
Joint Civil Judge, Junior Division, Parner below Exh.157 in
Regular Civil Suit No. 192 of 2001 is hereby modified to the
extent of payment of costs and instead of Rs.2000/-,
respondent No.4 (original defendant No.4) shall pay costs of
Rs.30,000/- to the petitioners-plaintiffs within a period of four
weeks from the date of this order.
III. The rest of the impugned order is not interfered with.
IV. The writ petition is accordingly disposed of.
8. Considering the old pendency of Regular Civil Suit No. 192 of
2001, the trial court is hereby directed to dispose of the suit as
expeditiously as possible.
( V. K. JADHAV, J.)
rlj/
