Mehjabeen Aslam Ahmed vs Vimlesh Kumar Singh And Ors
2023 Latest Caselaw 11626 Bom

                                                              32-cra-258-2023.doc


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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

          CIVIL REVISION APPLICATION NO.258 OF 2023


 Mehjabeen Aslam Ahmed                            ... Applicant
           V/s.
 Vimlesh Kumar Singh and Ors.                     ... Respondents



 Ms. Gayatri Kapse i/b Ms. Mehjabeen Ahmed, for the
 Applicant.
 Mr. Pratik Sabrad for Respondent Nos.4-I to 4-V, 5,6,8,
 and 9.
 Mr. Nishant Tripathi a/w Pranav Vaidya i/b M. Tripathi
 and Co. for respondent No.1 to 3.


                                CORAM : AMIT BORKAR, J.

                                DATED      : NOVEMBER 9, 2023
 P.C.:

1. By this civil revision application, the applicant is challenging order dated 25th January 2023. By the said order, the Trial Court rejected the applicant's application for framing issue under Order 14 Rule 2 of Code of Civil Procedure, 1908 on the ground of jurisdiction and limitation. The Trial Court rejected the application on the ground that the applicant did not file her written statement and, therefore, question of framing of issue under Order 14 Rule 2 of the Code of Civil Procedure, 1908 does not arise. Another reason weighed with the Court is suit is for specific performance of contract and the plaintiff did not make any arrangement with the

32-cra-258-2023.doc

present defendant.

2. Once it is clear that the applicant had not filed written statement, application under Order 14 Rule 2 of Code of Civil Procedure was not maintainable. An issue can be framed only after the person raising issue of limitation or jurisdiction files written statement.

3. Apart from considering the issue of legality of the order, it is necessary to make reference to the conduct of the applicant. On the last occasion, i.e. on 26th October 2023, I fully heard the applicant in person. She was made aware of judgment of Apex Court in Ramesh Chandra Sankla & Ors. v. Vikrant Cement & Ors. reported in (2008) 14 SCC 58, and Major S.S. Khanna v. Brig. M.S. Dhillon reported in AIR 1964 SC 497. I was under impression that she was appearing in person and needs to be given opportunity to consider binding precedents but the advocate appearing for her today states that the applicant is also an advocate.

4. After she was made aware of the judgments as referred above, I fixed the present matter on 1 st November 2023. But after it was adjourned, the applicant in person again mentioned the matter and sought two weeks time. As per her request, the application is fixed for today. Today she furnished a certificate issued by Dr. Arti A. Benegal certifying that the applicant is under treatment for lower Lumber Pain, and is advised bed rest for seven days.

5. It is, therefore, necessary that notice needs to be issued to Dr.

32-cra-258-2023.doc

Aarti A. Benegal to ascertain as to whether the cause shown in the certificate is correct or not. The certificate is taken on record and marked "X" for identification.

6. Issue notice to Dr. Aarti Benegal having address Shop No.58, 1st Floor, Surya Shopping Centre, Sector V, Shristi Complex, Mira Road (East) - 401 104.

7. Dr. Aarti Benegal will appear on the next date either personally or through advocate and shall file an affidavit giving details of the case papers of the applicant and explanation as to why bed rest as mentioned in the certificate is necessary.

8. I, therefore, adjourn the application to 5 December 2023. The application shall be placed first on board.

9. Considering the view expressed on the last occasion and after considering merits, no case of continuation of ad-interim relief is made out. The ad-interim relief granted earlier stands vacated forthwith.

(AMIT BORKAR, J.)