Bombay High Court
Prabha W/O. Govind Sontakke vs Vimal Vinayak Kalambe on 24 September, 2025
2025:BHC-NAG:9779
1
WP 6874-2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6874 OF 2024
Sau. Prabha W/o. Govind Sontakke,
Age : 50 Years, Occu. : Private [Tailor],
R/o. Plot No.36, Ankita Housing Society,
Ghogli, Village Besa Road,
Nagpur. .... Petitioner
VERSUS
Smt. Vimal Vinayak Kalambe,
Age : 75 Years, Occu. : Retired,
R/o. Gandhi Nagar, Corporation Colony,
Behind Indira Gandhi Hospital,
Nagpur. .... Respondent
....
Advocate for Petitioner : Mrs. Swati K. Paunikar
Advocate for Respondent : Mr. P.U. Nandanwar
....
CORAM : PRAFULLA S. KHUBALKAR, J.
Dated : 24th SEPTEMBER 2025
JUDGMENT :
1. Heard.
2. Rule. Rule is made returnable forthwith and by consent
of learned Advocates appearing for the parties, the petition is taken
up for final disposal.
WP 6874-2024
3. The petitioner's challenge is to the order dated
23.01.2019, passed by learned Judge, Small Causes Court, Nagpur, at
Exhibit 24, in Regular Civil Suit No.40 of 2015, thereby rejecting the
petitioner's application for setting aside 'no written statement' order
and permission to file written statement.
4. The petitioner is original defendant in the civil suit
bearing R.C.S. No.40 of 2015, filed by the respondent/plaintiff,
seeking recovery of arrears of rent. It is the plaintiff's case that the
defendant is occupying a shop block, admeasuring 10 X 10 i.e.
100 Sq. Ft., belonging to the respondent, and the defendant who is
the tenant was in arrears of rent to the extent of Rs.75,000/-, on the
date of filing of suit. The defendant was served in the civil suit,
however, within the stipulated time, the written statement was not
filed and resultantly, an order to proceed without written statement
came to be passed on 06.06.2016. After the suit was proceeded, the
defendant filed an application dated 08.01.2019, for setting aside 'no
written statement' order and sought permission to file written
statement. The said application was opposed by the plaintiff and the
trial court passed the impugned order, thereby rejecting the
application.
WP 6874-2024
5. Learned Advocate for the petitioner/defendant submits
that the petitioner is occupying the shop block, admeasuring 10 X 10
i.e. 100 Sq. Ft., where she is running a tailoring shop and her entire
family is dependent upon the income from the said business. Learned
Advocate for the petitioner submits that the petitioner is suffering
from severe medical ailments and even her husband is also suffering
from slip discs and lumbar spondylitis and he is unable to move from
bed. It is submitted that, on account of the medical ailments suffered
by the petitioner, she was not able to contest the suit by filing written
statement at the relevant time. It is submitted that the petitioner's
valuable right to file the written statement is taken away and the
impugned order needs to be quashed.
6. By strongly opposing the petition, learned Advocate for
the respondent/plaintiff submits that the petitioner, who is the
tenant, is contesting other proceedings filed by the respondent
seeking ejectment and possession and the petitioner has filed written
statement in that case. It is, therefore, submitted that the petitioner
has been negligent in filing the written statement in the suit for
recovery of arrears and even the instant petition is filed after
inordinate delay.
WP 6874-2024
7. It has to be seen that the respondent has filed the suit in
question for recovery of arrears of rent of Rs.75,000/-. No written
statement order came to be passed on 06.06.2016. Thereafter, the
petitioner filed an application dated 08.01.2019, for setting aside 'no
written statement' order and seeking permission to file written
statement. Perusal of the said application shows that the petitioner
has stated elaborate reasons about her medical ailments. It has also to
be seen that the suit has proceeded without written statement of the
petitioner/defendant and resultantly, even though the petitioner is
entitled to conduct cross-examination of the plaintiff's witness,
however, in absence of any written statement on record, she would be
deprived from setting up her defense.
8. Since the pleadings of the petitioner/defendant by way of
written statement had not come on record, the petitioner has been
deprived of the valuable right to contest the suit effectively. The
position of law is settled in view of the judgment of the Hon'ble
Supreme Court in the case of Kailash Vs. Nankhu and Others, [2005
(4) SCC 480] that the provisions of Order VIII Rule 1 of Code of Civil
Procedure are directory and considering the facts and circumstances
of a case, the defendant may be allowed to file written statement. In
WP 6874-2024
the peculiar facts of this case, I am of the opinion that a pragmatic
view needs to be taken since the decision of the suit on merits is
desirable. At the same time, it has also to be seen that the petitioner
has not been diligent in filing the written statement and so also, in
filing the instant petition. The impugned order is challenged after
about five years and therefore, to balance the hardship suffered by the
respondent, she needs to be compensated appropriately.
9. Having regard to the legal position that the right of
defendant to file the written statement is valuable and need not be
taken away, thereby depriving the defendant from contesting the suit
on merits and having regard to the factual and legal aspects, I am of
the view that interest of justice will be subserved by allowing the
petitioner/defendant to file the written statement by appropriately
compensating the respondent/plaintiff with costs. Hence, following
order is passed.
ORDER
I) The Writ Petition is allowed, subject to costs of
Rs.10,000/- (Rupees Ten Thousand Only), to be paid
by the petitioner to the respondent, within a period
three weeks from today.
WP 6874-2024
II) The order dated 23.01.2019, passed by learned Judge,
Small Causes Court, Nagpur, at Exhibit 24, in Regular
Civil Suit No.40 of 2015, is hereby quashed and
set-aside.
III) The application dated 08.01.2019, filed by the
petitioner/defendant, at Exhibit 22 in Regular Civil
Suit No.40 of 2015 is allowed and the
petitioner/defendant is permitted to file written
statement on record.
IV) Rule is made absolute in aforesaid terms.
[ PRAFULLA S. KHUBALKAR ]
JUDGE
asd
