High Court

Legal Reasoning

(1) wp-3255-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.3255 OF 2025Suryakant Bhagwandas SharmaAge: 63 years, Occu. Business,R/o. City Survey No.2878/A,Khol Galli, Dhule,Tq. and District Dhule...Petitioner(Orig. Defendant No.1.)Versus1.Radhakishan Khushaldas Chawla,Age: 68 years, Occu. Business.2.Nirmala W/o. Parashram Chawla,Age: 71 years, Occu. Household.3.vinod Parashram Chawla,Age: 39 years, Occu. Business.4.Ashish Parashram Chawla,Age: 35 years, Occu. Business.All R/o. Kumarnagar, Block No.F-1,Room No.1. Kumarnagar,Sakri Road, Dhule,Tq. and District Dhule.5.Kajal W/o. Sunilkumar Wagwani,Age: 48 years, Occu. Household,R/o. Geeta Bhavan, Wankhed Layout,Buldhana, Tq. and District Buldhana.6.Vaishali w/o. Gopal Walecha,Age: 45 years, Occu. Household,r/o. Block No.4-A, Holaram Colony,Sadhu Waswani Road, Nashik,Tq. and District Nashik.7.Keshar Anil Bajaj,Age: 41 years, Pccu. Household,R/o. Flat No.13, sojal Plastic,Tidkenagar, Untawadi, Nashik,Tq. and District Nashik...Respondents (2) wp-3255-2025.odt (Respondent No.1 to 4-Orig. Plaintiffs, Respondent No.5 to 7-Original Defendant Nos.2 to 4.) …Mr. A. N. Nagargoje, Advocate for Petitioner.Mr. P. P. Mandlik, Advocate for Respondent Nos.1 to 7.… CORAM : S. G. CHAPALGAONKAR, J.Reserved On : 26th JUNE, 2025.Pronounce On : 15th JULY, 2025. JUDGMENT:- 1.Rule. Rule made returnable forthwith. With consent of theparties, matter is taken up for final hearing at admission stage.2.The present petition filed under Article 227 of theConstitution of India takes exception to multiple orders passed byCivil Judge Senior Division, Dhule in Special Civil SuitNo.108/2021, which are described in tabular from for brevity asunder:Sr.No.Date of OrderExhibit Nos.Particulars1.23.08.20241Closing evidence of defendants.2.18.12.202459Application to set aside no-cross orderdated 10.04.2024 and permit to cross-examine plaintiffs’ witness isrejected.3.18.02.202561Application to set aside no writtenstatement order dated 19.04.2022and accept his written statementalongwith counter claim is rejected.3.The respondent nos.1 to 4 (original plaintiffs) filed SpecialCivil Suit No.108/2021 against petitioner and respondent nos.5 to 7 (3) wp-3255-2025.odtclaiming relief of possession of suit property. On 20.09.2021, suitsummon was served upon petitioner. On 10.02.2022,petitioner/defendant no.1 caused appearance in suit and matterwas posted for his written statement on 11.03.2022. However, on19.04.2022 due to failure of petitioner to file written statement, nowritten statement order came to be passed. The Trial Courtframed issues. At this stage plaintiffs submitted applicationseeking permission to lead secondary evidence of sale deeds dated30.10.1980 and 17.11.1993, which was allowed on 06.01.2023. Thepetitioner assailed said order in Writ Petition No.4160/2023 beforethis Court. However, Writ Petition has been withdrawn. On25.09.2023, plaintiff no.1 filed his affidavit in lieu of examination-in-chief at Exhibit-30. The petitioner failed to cross-examineplaintiffs. Hence, vide order dated 10.04.2024, Trial Court passedno-cross order. On 24.06.2024, plaintiffs filed affidavit in lieu ofexamination-in-chief of their second witness. The matter wasposted for cross-examination of PW-2 on 24.07.2024. However,petitioner failed to cross-examine him. Hence, Trial Court passedno-cross order. On same day, plaintiffs closed their evidence byfiling pursis below Exhibit-52. On 23.08.2024, petitioner filedapplication below Exhibit-54 seeking time to file his evidenceaffidavit. However, same came to be rejected and evidence ofpetitioner is closed. On 06.09.2024, matter was posted for finalargument, but adjourned time to time. Thereafter, (4) wp-3255-2025.odtrespondents/plaintiffs concluded their arguments and on17.12.2024, matter was posted for argument of defendants.4.At this stage, petitioner/defendant no.1 moved applicationbelow Exhibit-59 to set aside no-cross order dated 10.04.2024 andpermit him to cross-examine plaintiffs’ witness. The Trial Courtrejected application Exhibit-59 and posted matter for judgment.On 19.12.2024, petitioner moved another application belowExhibit-61 and prayed for setting aside no written statement orderdated 19.04.2022 and accept his written statement alongwithcounter claim. On 18.02.2025, Trial Court rejected petitioner’sapplication Exhibit-61 and posted matter for judgment. At thisstage present Writ Petition is filed challenging impugned orders.5.Mr. Nagargoje, learned Advocate appearing for petitionerwould submit that matter pertains to civil rights of parties asregards to immovable property. In such cases, decision on merit issolicited. Unless petitioner puts up his defence by way of writtenstatement and cross-examine plaintiffs’ witness, just decisionwould not be possible. Mr. Nagargoje submits that although somelapses can be imputed against petitioner, Trial Court could havegranted opportunity to file written statement and defend suit byimposing compensatory costs. The petitioner cannot be unsuitedfor technical reasons. According to Mr. Nagargoje, learned TrialCourt took hasty decision without appreciating adequate reasons (5) wp-3255-2025.odtmentioned in application Exhibit-61. Mr. Nagargoje submits thatpersonal file of Advocate was handed over to Advocate atAurangabad while filing Writ Petition against the order passedbelow Exhibit-22; however, it was misplaced and could be finallytraced out in December 2024. Thereafter, application was movedbelow Exhibit-61, which ought to have been allowed. According toMr. Nagargoje, there is no fault on the part of petitioner or hisinaction was not intentional. No prejudice would be caused, ifimpugned orders are quashed and set aside and petitioner ispermitted to file written statement, cross-examine plaintiffs’witness and lead his own evidence.6.Per contra, Mr. Mandlik, learned Advocate appearing forrespondent nos.1 to 7 strongly opposes prayers in Writ Petitioncontending that defendant no.1 appeared in suit in pursuance tosuit summons on 10.02.2022 and appointed Advocate to defendsuit. He remained watchdog in proceeding of suit and madeapplications seeking adjournments at various stages. Mr. Mandlikwould point out that petitioner was well aware about no writtenstatement order passed on 19.04.2022. Even, he had challengedsubsequent order passed below Exhibit-22 in Writ Petition beforethis Court. The said Writ Petition was withdrawn on 26.06.2023.Thereafter, plaintiff recorded their evidence from 22.09.2023 till24.07.2024 but petitioner failed to cross-examine witness leading to (6) wp-3255-2025.odtno-cross orders. The defendant was given opportunity to lead hisevidence, however, he failed. Hence, his evidence was closed on23.08.2024 and then matter reached to final stage. When matterwas posted for judgment, petitioner filed application for settingaside no written statement order and to set clock back to the stageof filing written statement. According to Mr. Mandlik, nojustifiable reasons are given for entertaining application for settingaside no written statement order or no-cross order passed againstpetitioner. The Trial Court recorded elaborate reasons whilerejecting application below Exhibit-61 and refused to set aside nowritten statement order dated 19.04.2022. He would urge that nointerference is required in impugned order looking to the conduct ofpetitioner.7.Having considered submissions advanced on behalf oflearned Advocates appearing for respective parties, it can beobserved that respondents instituted suit for possession in respectof suit property i.e. constructed building admeasuring 41 squaremeter situated at Lane No.4, Khol Galli, CTS No.2878/A at Dhule.The suit summons was served upon petitioner, he caused hisappearance on 10.02.2022 and on his failure to file writtenstatement, no written statement order has been passed on19.04.2022. Even though the petitioner had knowledge of suchorder, he did not find it necessary to file an application for setting (7) wp-3255-2025.odtaside the order or to present a written statement. The plaintiffsproceeded with suit, tendered documents in evidence and then filedtheir affidavit in lieu of examination-in-chief. Even, at all thesestages, defendants failed to cross-examine witnesses. Theproceeding shows that petitioner was given sufficient opportunityat every stage. The proceeding was going on in his presence and tohis knowledge. The petitioner’s Advocate diligently filedapplications seeking adjournment on multiple grounds at all stagesof suit. However, did not cross-examine witnesses or took effectivepart in proceeding.8.From March 2023 till 23.08.2024, all procedural steps fromfiling of written statement to closing of evidence took place inpresence and knowledge of petitioner’s Advocate and matter wasposted for final argument from 06.09.2024 onward. Even at thisstage, petitioner has not participated in proceeding. On 17.12.2024matter was posted for petitioner’s argument, at this stage hemoved application below Exhibit-59 for setting aside no-cross orderdated 10.04.2024 and sought permission to cross-examineplaintiffs’ witness. The Trial Court rejected said application andposted matter for judgment.9.At this stage, i.e. on 19.12.2024 first time petitioner filedapplication below Exhibit-61 seeking permission to set aside nowritten statement order. The conduct of the petitioner shows that (8) wp-3255-2025.odthe never intended to defend the suit, but was merely protractingthe proceedings by hook or by crook.10.At the stage of judgment, petitioner filed application forsetting aside no-cross order and thereafter, filed applicationExhibit-61 for setting aside no written statement order. Perusal ofreasons in application nowhere suggests that petitioner wasprecluded by sufficient cause or reasons for not filing writtenstatement till matter reached to the stage of judgment. All stagesof suit from the stage of written statement to judgment werepassed in presence of petitioner.11.In this background, learned Trial Court observed thatalthough in appropriate cases Court has power to permit filingwritten statement even at belated stage, the said power cannot beexercised to nullify entire rigour and impact of regulatoryprovisions of Code of Civil Procedure. Even, Trial Court hasrightly placed reliance on observations of Supreme Court of Indiain case of Kailash Vs. Nanku1 stating that Court is conferredwith power to permit filing of written statement. The exercise ofpowers cannot be justified in each and every case. At this stage,reference can be given to the observations made by Supreme Courtof India in case of Kailash (supra), which reads thus:“The extension of time shall be only by way of exception andfor reasons to be recorded in writing, howsoever brief they1(2005) 4 SCC 480. (9) wp-3255-2025.odtmay be, by the court. In no case, the defendant shall bepermitted to seek extension of time when the court issatisfied that it is a case of laxity or gross negligence on thepart of the defendant or his counsel. The court may imposecosts for dual purpose: (i) to deter the defendant fromseeking any extension of time just for asking and (ii) tocompensate the plaintiff for the delay and inconveniencecaused to him.”12.In present case, petitioner failed to put forth single goodreason for not filing written statement for more than two yearsafter his appearance in suit till matter reached to the stage ofjudgment. The conduct of petitioner is not only negligent, butshows disregards to the procedural rigors and depicts arroganceand disrespect to the procedure of law. The Trial Court has rightlyobserved that when hearing is completed and matter is posted forjudgment, parties have no further rights or privilege and Court hasto pronounce judgment. This Court do not find any reason tointerfere in order dated 18.02.2025 passed below Exhibit-61rejecting prayer of petitioner to grant permission to file writtenstatement/counter claim.13.Even this Court has no reason to interfere in order dated18.12.2024 passed below Exhibit-59, whereby petitioner soughtpermission to cross-examine witness, particularly when no-crossorders were passed in relation to PW-1 on 10.04.2024 and inrelation to PW-2 on 24.06.2024. The petitioner sought to set asidethose orders by filing application below Exhibit-59 on 17.12.2024. (10) wp-3255-2025.odtThe said application sans no reasons at all. What preventeddefendant from taking cross-examination, when plaintiffs’ witnesswas present in Court is not clarified. Even no explanation hasbeen given as to why the application for setting aside no writtenstatement order was not filed during the eight-month period whenthe suit proceedings were ongoing.14.In this background, no case is made out to interfere inimpugned orders in exercise of Writ jurisdiction of this Court. Inresult, Writ Petition stands dismissed.15.Rule stands discharged. (S. G. CHAPALGAONKAR)JUDGE16.At this stage, Mr. Nagargoje, learned Advocate appearing forpetitioner seeks continuation of interim relief granted duringpendency of writ petition.17.For the reasons stated in order, request is rejected.(S. G. CHAPALGAONKAR)JUDGEDevendra/July-2025