Bombay High Court
Vijaya Devendra Chhajed And Another vs Shivaji Gangadhar Pawar And Others on 12 December, 2023
2023:BHC-AUG:26303
1 919.WP-13589-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13589 OF 2023
1. Sau. Vijaya Devendra Chhajed
2. Sau. Suvarna Rikhabchand Nahata ...Petitioners
Versus
1. Shivaji s/o Gangadhar Pawar
2. Sau. Rajubai Shivaji Pawar
3. State of Maharashtra,
Through its Secretary, Revenue and Forest Department,
Mantralaya, Mumbai-32.
4. District Collector, Ahmednagar
District Ahmednagar.
5. Sub-Divisional Ofcer and Deputy Collector,
Ahmednagar Division, Ahmednagar.
6. Tahasildar, Newasa,
Tahasil Ofce, Newasa, Dist. Ahmednagar.
7. Sub-Registrar Newasa,
Tahasil Ofce, Newasa, Ahmednagar.
8. Circle Ofcer and Circle Inspector,
Newasa Bk. Taluka Newasa, Dist. Ahmednagar.
9. Talathi, Punatgaon,
Tal. Newasa, Dist. Ahmednagar.
10. Vitthal s/o Bhaulal Golecha
11. Ramchandra Bahulal Golecha
12. Sau. Ratnamala Rasiklal Mutha
13. Sau. Jayashri Dalichand Shingi ...Respondents
2 919.WP-13589-2023.doc
****
Mr. A.P. Nahar, Advocate for Petitioners .
Mr. Z.M. Pathan, Advocate for Respondent No.1 and 2
Mr. V.S. Badakh, AGP for Respondent Nos. 3 to 9
Mr. A.P. Bhandari, Advocate for Respondent Nos. 10 to 13
****
WITH
WRIT PETITION NO. 8327 OF 2018
1. Shivaji Gangadhar Pawar
2. Smt. Rajubai Shivaji Pawar ...Petitioners
Versus
1. Vitthal s/o Bhaulal Golecha
2. Ramchandra Bahulal Golecha
3. Sau. Ratnamala Rasiklal Mutha
4. Sau. Jayashri Dalichand Shingi
5. Sau. Vijaya Devendra Chhajed
6. Sau. Suvarna Rikhabchand Nahata
7. State of Maharashtra
8. District Collector, Ahmednagar
District Ahmednagar.
9. Sub-Divisional Ofcer and Deputy Collector,
Ahmednagar Division, Ahmednagar.
10. Tahasildar, Newasa,
Tahasil Ofce, Newasa, Dist. Ahmednagar.
11. Sub-Registrar Newasa,
Tahasil Ofce, Newasa, Ahmednagar.
3 919.WP-13589-2023.doc
12. Circle Ofcer and Circle Inspector,
Newasa Bk. Taluka Newasa, Dist. Ahmednagar.
13. Talathi, Punatgaon,
Tal. Newasa, Dist. Ahmednagar. ...Respondents
****
Mr. Z.M. Pathan, Advocate for Petitioners .
Mr. A.P. Bhandari, Advocate for Respondent No.1 and 2
Mr. A.P. Nahar, Advocate for Respondent No.5 and 6
Mr. V.S. Badakh, AGP for Respondent Nos. 7 to 13
****
CORAM : SHAILESH P. BRAHME, J.
DATE : 12th DECEMBER 2023
JUDGMENT :
. Rule.
2. Rule is made returnable forthwith by the consent of the parties.
Heard learned Counsel for litigating the sides fnally at the admission
stage.
3. Both the petitions are arising out of the self same proceedings
and have common relevant facts. Writ Petition No. 8327 of 2018 is fled
by original plaintifs challenging order below Exh-107 passed by the trial
court setting aside 'no written statement' order where as Writ Petition
No.13589/2023 is fled by original defendant No. 12 and 13 rejecting
their application to set aside 'no written statement' order passed
against them. The parties are referred as per their original status in the
suit. For the sake of convenience, petition paper book of WP No. 8317 of
2018 is referred.
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4. Petitioner-plaintifs have fled RCS No. 22 of 2014 for declaration
and injunction. The respondent No. 1 to 6 are the heirs of original owner
Bhaulal Girdhial Gulechal. The suit lands were mortgaged by registered
deed dated 20.04.1967 to the plaintifs' father. The plaintifs claim to be
owner by adverse possession. The mutation entries and the orders
passed by the revenue authority are challenged in the suit.
5. The defendants appeared in the suit but did not fle written
statement in time. They fled application challenging the jurisdiction of
the civil court. Number of applications have been fled seeking extension
of time to fle written statement. Though they appeared on 18.09.2014,
written statement was not fled till 30.10.2014. On 30.10.2014, 'no
written statement' was passed against them.
6. The defendants Nos. 8 to 11 fled application Exh-107 on
09.10.2017, after about 3 years for setting aside no written statement
order. It was objected by the plaintifs. By order dated 02.05.2018,
application Exh-107 was allowed at the cost of Rs. 4000/-.
7. The remaining private parties defendant Nos. 12 and 13 fled
application Exh-141 on 02.03.2023 for setting aside no written
statement order. It is also prayed that the written statement of
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defendant No. 8-11 be permitted to be adopted. The application was
objected by the plaintifs. By order dated 07.10.2023, the learned trial
judge rejected the application.
8. Learned counsel for the petitioner-plaintifs has made following
submissions.
i) There was caveat fled by the defendants in the suit on 26.06.2014
and they were aware of the proceedings. Still instead of fling written
statements, they went on fling applications challenging the jurisdiction
of the court.
ii) The defendants actually appeared in the suit, prosecuted
applications raising preliminary objections, secured extension of time
for fling written statement and even carried matter to the High Court
against rejection of the application, but deliberately did not fle written
statement. This conduct is objectionable and cannot be condoned.
iii) No separate application or prayer are made for condonation of
delay of more than three years. No sufcient reasons are shown for
condonation of delay.
iv) The defendants were given sufcient time to fle written
statement. Many chances were given. At a times, the cost was also
imposed. Thus, they protracted the matter.
v) The plaintifs cannot be blamed for seeking amendment to the plaint
belatedly. The plea of adverse possession is made available to the
plaintifs after change in legal position.
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vi) The prayers of the defendant No. 12 and 13 in application Exh-141 are
misconceived. The written statement of other defendants is comprising
of counter claims which can not be adopted.
vii) There are huge latches for the defendant No. 12 and 13 to seek
prayers for adopting written statement.
9. Learned counsel for the private party-defendants have advanced
following submissions :-
i) The defendants appeared in the suit and raised objections for the
jurisdiction and maintainability of the suit. The suit was not tenable
considering prayers in the plaint in paragraph No. 16 (b) (c).
ii) The defendants adopted permissible course of challenging the
jurisdiction and maintainability. Preliminary issue was also framed on
17.01.2017 and answered on 06.09.2017. They had legitimate
explanation and prosecuted the remedies.
iii) The suit has not been progressed much. The plaintifs amended plaint
on 18.11.2022. The evidence is yet to commence.
iv) The defendants cannot be blamed for the delay. If their written
statements are accepted. No prejudice would be caused to the plaintifs.
v) The defendant No. 8 to 11 have fled written statement on record
which is comprising of counter claim also. The learned judge is justifed
in allowing application Exh-107 by imposing costs.
vi) The impugned order below Exh-141 is discriminatory and by imposing
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reasonable cost application Exh-14 should have been allowed. The
justice oriented approach needs to be taken by permitting the
defendants to fle their written statement.
10. Learned counsel for the petitioner relied upon following
judgments :
(i) ATCOM Technologies Ltd. Vs. Y.A. Chunawala and Company and Ors.
(ii) Mohammed Yusuf Vs. Faij Mohammad & Ors.
(iii) M/s. Aditya Hotels (P) Ltd Vs. Bombay Swadeshi Stores Ltd. & Ors.
(iv) Vijaykumar Shivmurti Shende Vs. Ashalata Alias Sulabha Malikarjun
Tingre
11. The respondents relied upon following judgments :
(i) Desh Raj Vs. Balkishan (D) Through Proposed LR MS. Rohini
(ii) R. K. Roja Vs. U.S. Rayudu and Another
12. In both the matters, learned AGP has appeared for original
defendant No.1 to 7. He supports impugned order.
13. I have considered rival submissions advanced by the litigating
sides and the judgments cited by them.
14. Pertinently, in RCS No. 22 of 2014, recording of evidence has not
been commenced till today. There is written statement comprising of
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counter claim fled by the defendant No. 8 to 11. The defendants in both
the writ petitions have proprietary interest in the suit land. They claim to
be descendants of the original owners. The substantive rights and
liabilities of the parties are involved in the suit.
15. On 30.10.2014, order of No written statement was passed, against
defendants No. 8 to 13. The defendant No. 8 to 11 fled application Exh-
107 on 09.10.2017. The defendant No. 12 and 13 fled application Exh-
141 on 02.03.2023. Though there is no specifc prayer for condonation of
delay in application Exh-107, it contained the explanation.
16. I have considered the principles laid down in the judgments cited
by the parties as follows :
(i) Supreme Court in ATCOM Technologies (supra) in paragraph No. 13 to
17 mandating that time for flling written statement can be extended
only in exceptionally hard cases. The delay of fling written statement
cannot be condoned mechanically in the absence of convincing reasons.
(ii) In the matter of Mohammed Yusuf (supra), the reference is made to
paragraph No. 14 to 16 that the time limit prescribed in Order 8 Rule 1
must be adhered too. Unless there is justifcation that time may not be
extended.
(iii) The principles in paragraph No. 8 of judgment of M/s. Aditya Hotels
(supra) also falls on the same line.
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iv) The judgment in the matter of Vijaykumar (supra) there is reference
in head note that without fling separate application for condonation of
delay application for setting aside 'no written statement' order, is not
entertainable. However, it is not laid down that separate application for
condonation of delay is condition precedent for seeking quashment of
no written statement order.
17. The defendants relied upon latest judgment on the issue in the
matter of Desh Raj(supra). It is the judgment of three Hon'ble Judges of
the Supreme Court and it has considered various previous judgments. In
paragraph No. 15,18 and 19 the principles are summarized. However,
defendant in that matter was permitted to fle written statement by
imposing cost of Rs.25,000/-. Of course, it is in the wake of extraordinary
power of the Supreme Court. The judgment of the Supreme Court in the
matter of R.K.Roja (supra) is cited to buttress that the liberty to fle an
application for rejection under Order 7 Rule 11 of CPC cannot be made
as a ruse for retrieving the lost opportunity to fle the written
statement.
18. The defendants appeared in the suit and raised objections of
jurisdiction and tenability of the suit by submitting applications.
Considering prayer clause of plaint, paragraph NO. 16 (b) and (c) the
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defendants raised objections. The preliminary issues were framed on
17.01.2017 and answered negatively on 07.09.2017. Matter was carried
to the High Court by the defendants but they were unsuccessful. It can
be said to be their legitimate explanation, that the suit is liable to be
dismissed either on the ground of want of jurisdiction or tenability. They
are justifed in not fling written statement when they are prosecuting
the dismissal of the suit at the threshold.
19. Their application for extension of time for fling written
statement which are at Exh-25,38,41,53 were entertained but they failed
to fle written statement. Even cost was also imposed. This type of
conduct of the defendant was objectionable. However, I am not
prepared to accept that due to lapses on the part of the defendants
they are liable to be deprived of fling of written statement. If the
adequate and reasonable cost is imposed, inconvenience of other side
can be taken care of.
20. Though in application Exh-107 separate prayer is not made or
separate application for condonation of delay is not fled, the delay has
been sufciently explained. No oblique motive or the mala-fdes can be
inferred from the explanation. The length of the delay is not material
when it is pitted with substantial cause of justice.
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21. I am of the considered view that the defendants have made out a
case for exceptional circumstances. They are entitled to be given an
opportunity to fle written statement. The substantive stakes are
involved in the matter. It is matter of record that the recording of
evidence is yet to be commenced. Even the plaintifs have amended
their plaint and raised plea of adverse possession in the year 2022. The
ends of the justice would be met if the cost is imposed upon the
defendants and they are directed to furnish undertaking for cooperation
in disposing of the suit expeditiously.
22. The impugned order passed below Exh-107 needs no interference
except quantum of costs. The learned judge has adopted pragmatic
approach. It is in consonance with principles of natural justice. However, I
fnd that the cost of Rs.4000/- is inadequate. I propose to enhance it to
Rs. 20,000/- together to be paid to the plaintif by defendant nos. 8 to
11.
23. I fnd that order passed below Exh-141 is unsustainable especially
when I have confrmed order passed below Exh-107 and the defendant
No. 8 to 11 are permitted to fle written statement. For submitting
application Exhibit-141, there is delay of about 8 years and for that the
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plaintifs are needed to be compensated. The defendant No. 12 and 13
want to adopt the written statement which is also fled on record by the
defendant No. 8 to 11. In the interest of justice, the prayer needs to be
allowed by imposing cost of Rs. 30,000/- together to be paid to the
plaintifs.
24. The learned counsel for the plaintifs vehemently argued that the
written statement of defendant No. 8 to 11 which is comprising of
counter claim cannot be adopted by defendant No. 12 and 13. Whether
there are latches or any technical difculty or prohibition in adopting the
counter claim are the contentious issues which are to be dealt with the
during the trial. We are on the verge of permission to fle written
statement or adopt written statement. The plaintifs will have liberty to
contest the entitlement of the defendants for relief in counter claim.
25. For the reasons stated above, I pass following order.
ORDER
i) Order dated 02.05.2018 below Exh-107 passed by the learned
Civil Judge, Senior Division, Newasa is confrmed by substituting
cost of Rs. 20,000/- instead of Rs.4000/-.
ii) Order dated 07.10.2023 below Exh-141 passed by learned Civil
Judge, Senior Division, Newasa is quashed and set-aside.
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iii) The application Exh-141 stands allowed by imposing cost of Rs.
30000/- together to be paid to the plaintifs.
iv) The defendants No. 8 to 13 shall furnish undertaking to the trial
court that they shall co-operate for expeditious disposal of the
suit and shall not seek unnecessary adjournments.
v) The proceedings in RCS No. 22 of 2014 are expedited.
vi) Both the Writ Petitions are disposed of.
vii) Rule is made absolute in both the petitions in above terms.
[SHAILESH P. BRAHME, J.]
Najeeb.
Signed by: Mohammad Najeeb
Designation: PA To Honourable Judge
Date: 15/12/2023 16:54:12
