Madhya Pradesh High Court
Shanti Bai vs Shri Praveen Patel on 31 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 31st OF JANUARY, 2025
MISC. PETITION No. 6800 of 2024
SHANTI BAI AND OTHERS
Versus
SHRI PRAVEEN PATEL AND OTHERS
Appearance:
Shri Priyan Shrivastava - learend counsel for the petitioners.
Shri Sambhav Sogani- through V.C. with Shri K.N. Dwivedi - learned counsel for
the respondents.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
In this petition under Article 227 of the Constitution of India, the
petitioners have assailed the order dated 20/11/2024 (Annexure P/2), passed
by Commercial Court, Bhopal in Case No. COMMS-31/2023, whereby
written statements filed on behalf of the petitioners have been refused to be
taken on record and petitioners rights to file written statements has been
closed.
2 . Briefly stated facts of the case are that respondent No.1/plaintiff
filed a civil suit against the defendants in the Commercial Court, Bhopal for
specific performance of contract. On 27/01/2024, petitioners counsel
appeared before the Court and took time to file Vakalatnama. Thereafter, the
petitioners filed an application under Order 6 Rule 2 read with Section 151
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of CPC, which is mandatory provision and plaintiffs took time to file the
reply. After that, on 19/09/2024, defendants filed an application under Order
7 Rule 11 of CPC stating that the suit is not maintainable as it was filed
against a deceased person (Seema), therefore, plaintiff filed an application
under Order 22 Rule 4 of CPC to substitute her legal heirs, which was
dismissed by the Commercial Court. On 01/10/2024, the petitioners seeks
time to file written statement and argument on order 39 Rule 1 and 2 of CPC.
On 08/10/2024, the matter got adjourned as presiding Officer was on leave.
On 06/11/2024, the case adjournment for arguments on application filed by
plaintiff under Section 51 CPC, application under Order 39 Rule and 2 of
CPC and for filing written statement. On 20/11/2024, the petitioners filed
their written statement but Commercial Court has not taken on record and
closed the right of the defendants to file written statement. Being aggrieved
by the impugned order, the petitoners have filed present petition before this
Court.
3. Learned counsel for the petitioners submits that the learned trial
Court ought to have considered that the written statements on behalf of the
petitioners are necessary for proper and just adjudication of the matter. It is
also submitted that the learned trial Court has committed error in holding
that Order 8 Rule 10 of CPC is mandatory in nature and the written statement
cannot be filed after lapse of 120 days. In support of his contentions, learned
counsel for the petitioners placed reliance on the judgment of Hon'ble
Supreme Court in the case of Kailash Vs. Nankhu & Ors., (2005) 4 SCC
480 . Therefore, it is prayed that the petitioners may be granted an
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opportunity to file the written statement.
4. Per contra, learned counsel for the respondents has vehemently
opposed the prayer made by the petitioners and submitted that since the
written statements was filed belatedly, therefore, the Court below has not
committed any error in rejecting the application for taking written statements
on record.
5. Heard learned counsel for the parties and perused the record.
6 . It is not in dispute that the petitioners have filed the written
statements before the trial Court belatedly. However, in the interest of
justice, we deem it proper to grant one opportunity to the petitioners to file
written statements.
7. Accordingly, the impugned order dated 20/11/2024 (Annexure P/2),
passed by Commercial Court, Bhopal in Case No.COMMS-31/2023 is
hereby set aside. It is directed that subject to petitioners' depositing a cost of
Rs.5,000/- within fifteen days from today, petitioners be permitted to file
written statements and the same shall be taken on record. It is made clear that
petitioners would not be entitled to seek any further adjournment to file
written statements.
8 . It is also made clear that this Court has not expressed any opinion
on the merits of the case.
9. With the aforesaid observation, this petition is disposed of.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
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