Mr. Mangaldas Arjundas Choudhary ... vs Mohd. Shahid Mohd. Jabir And ...
2023 Latest Caselaw 10186 Bom

2023:BHC-NAG:14393
                                      1                         20-4695-2023-j.odt


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH AT NAGPUR

                           WRIT PETITION No. 4695 OF 2023

                     PETITIONERS:   : 1    Mr. Mangaldas Arjundas Choudhary
                                           (Since Dead) Through Legal Heirs

                                      1a Smt. Chandrakala Mangal Choudhary
                                           Aged about 55 years, Occ.Household,

                                      1b Vikram Mangal Choudhary
                                           Aged about 33 years, Occ. Business

                                      1c   Rahul Mangal Choudhary
                                           Aged about 31 years, Occ.Business

                                      1d Smt. Gayatri Sachin Purne,
                                           Aged about 34 years, Occ. Household

                                      1e   Smt. Neha Pankaj Choudhary prior to
                                           marriage known as Ku. Neha Mangal
                                           Choudhary,
                                           Aged about 29 years, Occ.Household,


                                           All R/o House No.105, Ward No. 49,
                                           Panaipeth, Timki, Mominpura,
                                           Nagpur

                                               Vs.

                     RESPONDENTS : 1       Mr. Mohd. Shahid Mohd. Jabir
                                           Aged about Major, Occ. Pvt. Work

                                      2    Mr. Mohd. Idrees Mohd. Jabir
                                           Aged about Major, Occ. Pvt. Work
                        2                             20-4695-2023-j.odt



                      3     Mrs. Shamshunisa w/o Mohd. Jabir
                            Aged about Major, Occ. Household,

                            All R/o House of Mustaqbhai
                            Canteenwala, Near Jalalbaba Dargah
                            Behind Hafeej Bekri, Mominpura,
                            Nagpur


Mr. S.R. Gupta, Advocate for petitioners
Mr. C.F. Bhagwani, Advocate or respondent Nos. 1 to 3


                          CORAM: AVINASH G. GHAROTE, J.

DATED : 3rd OCTOBER, 2023

ORAL JUDGMENT :

Rule. Rule is made returnable forthwith. Heard

finally with the consent of learned counsel appearing for rival

parties.

2. The petition challenges the order dated

23/12/2022, passed by the learned Small Causes Court,

whereby the application for striking out defence of the

petitioner / defendant for non-compliance of the order

passed below Exh.84, whereunder the petitioner / defendant

was directed to deposit the arrears of rent, has been allowed.

The impugned order itself records that the time was extended

and the order was complied in part and on the date of the 3 20-4695-2023-j.odt

order itself, some amount was deposited. It is an admitted

position, that before the date of the impugned order dated

23/12/2022 the entire arrears as directed to be deposited by

the order below Exh. 84 were paid, though belatedly.

Considering this position, the impugned order cannot be

sustained and is hereby quashed and set aside as the learned

trial Court has not taken into consideration that the entire

amount of arrears stood deposited even before passing of the

impugned order and considering the right of defence of the

defendant is a substantive right, could not have rendered the

petitioner / defendant defenceless, on account of a mere

delay in compliance with the order below Exh. 84. Though

reliance has been placed by Mr. Bhagwani, learned counsel

for the respondents on the Anandi Devi Vs M. Prakash 1987

(Suppl) SCC 527 the same does not appear to be a case in

which before passing of the impugned order of striking off

the defence, the amount of arrears stood paid, which also

appears to be a case in The Colaba Central Co-operative

Consumer Wholesale and Retail Stores Ltd. Vs. Smt.

Kusumben Kantilal Shah & Ors. 2003(4) ALL MR 304. In

that view of the matter, the impugned order cannot be 4 20-4695-2023-j.odt

sustained, the same is hereby quashed and set aside. The

petition is allowed. No costs.

Rule is made absolute in above terms. No costs.

(AVINASH G. GHAROTE, J.)

MP Deshpande

Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 03/10/2023 18:52:47