Age 35 yrs v. Smt.Shahim Aazamalkhan Hakim

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3046 OF 2011 Shri Balraj Digambar Jadhav Age 35 yrs. Occ Business Shri Mohan Digambar Jadhav Age 46 yrs Occ. Business Both Residing at 1383, A Ward, Rajghat Road, Kolhapur versus ] ] ] ] ] ] ]... Petitioners ] (Org. Defendants) Smt. Shahim Aazamalkhan Hakim Age 66 years, Occ Housewife Mr.Manjilkhan Mhamulalkhan Hakim ] ] Age 62 years Occ. Business ] ] ] ] ] ] ] ]... Respondents ] (Org. Plaintiffs) R/at-2357, D Ward, Budhwar Peth Brahmapuri, Kolhapur Mr.Moujjam Ajmalkhan Hakim Age 41 years, Occ. Service Mr.Drupad S Patil for the Petitioners Mr. Abhijit Adagale for the Respondents. CORAM : R M SAVANT, J. DATE : 22nd December 2011 ORAL JUDGEMENT :- 1 Rule, with consent of the parties made returnable forthwith and heard. 2 wp-3046.11.sxw 2 The above Petition filed under Article 227 of the Constitution of India takes exception to the order dated 17/3/2011 by which order the Application for setting aside the “No W.S. Order” filed by the Petitioners herein i.e. the original Defendants in Regular Civil Suit No.172 of 2010 came to be rejected.

2 The facts in brief can be stated thus :- The Respondents herein have filed the said Regular Civil Suit No. 172 of 2010 seeking relief of permanent injunction on the basis of the alleged threats given by the Petitioners with respect to the suit property which is allegedly co-owned and in possession of the Respondents. The Petitioners appeared in the said suit on 12/3/2010 when they sought time to file their written statement and reply to the temporary injunction application. The said application came to be granted and the trial Court adjourned the matter to 31/3/2010. A further application was filed on the next date seeking time to file Written statement, result of which, the said suit was adjourned to 20/4/2010. On the said day also an adjournment was sought as a result of which the suit was again adjourned to 28/6/2010. However on the said day, in view of the fact that the Written Statement was not filed, a “No W.S. Order” came to be passed against the Petitioners.

It appears that thereafter the suit proceeded in view of the fact that “No W.S. Order” came to be passed against the Defendants and the Examination in Chief of the witness on behalf of the Plaintiffs was recorded and the matter was thereafter posted for his cross examination by the 3 wp-3046.11.sxw Defendants. It is at that stage that the Application for setting aside the “No W.S. Order” came to be filed on 29/11/2010. The ground mentioned was that the Defendants were businessmen and in view of their pre-occupation could not instruct their advocate to prepare the Written Statement. The further ground was that the documents which were necessary for preparing the said Written Statement could not be procured within time. The said reasons did not commend to the learned trial Judge and by the impugned order the said Application came to be rejected. As indicated above it is the said order which is impugned in the present Petition.

3 4 Heard the learned counsel for the parties. It is trite that in so far as extension of time for filing the Written Statement is concerned, the same can be extended for good, sufficient and for the reasons which are beyond the control of the Defendants. In the instant case, it is the case of the Defendants that the Written Statement could not be filed on account of their pre-occupation and also on account of the fact that the necessary documents were not available. There is therefore undoubtedly a delay in filing the Written Statement. It is trite that Order VIII Rule 1 of the Code of Civil Procedure is held to be directory and not mandatory and for good and sufficient reasons, the delay can be condoned. 5 In my view, in the facts and circumstances of the present case, the 4 wp-3046.11.sxw Defendants have to be given an opportunity to contest the matter on merits by permitting them to file their written statement.

In that view of the matter, the impugned order dated 17/3/2011 passed on Exhibit 21 is required to be quashed and set aside, and is accordingly quashed and set aside, and consequently, the said Application is required to be allowed and is accordingly allowed, and resultantly, the Defendants are permitted to file their Written Statement. 6 By an order dated 20/4/2011 this Court had directed the Petitioners to deposit an amount of Rs.15,000/- in the trial Court to secure the costs that the respondent may incur in defending the present proceedings. In my view, it would be just and proper that the Respondents are compensated by way of costs. The Respondents would, therefore, be entitled to withdraw an amount of Rs.10,000/- out of the said deposit of Rs.15,000/- as costs. The balance amount of Rs.5,000/- will be allowed to be withdrawn by the Petitioners herein i.e. the Defendants in the said suit.

The hearing of the said Suit is expedited. The Respondents herein would be entitled to file their additional evidence in view of the fact that the Written Statement is now allowed to be taken on record. The trial Court would therefore have to proceed in accordance with law by framing appropriate issues taking into consideration the pleadings in question. Rule is accordingly made absolute in the aforesaid