Writ Petition No. 4465 of 2025 · The High Court
Case Details
WP-4465-25.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.4465 OF 2025Shantabai W/o. Baburao Navghare,Age: 51 years, Occu: Service,R/o. Dhangar Galli, Khandoba Road,Parbhani, Tq. & Dist. Parbhani.….PETITIONER (Orig. Defendant No.6)VERSUS1.Kantabai W/o. Dnyanoba Lokde,Age: 49 years, Occu: Household,R/o. Ridaj, Tq. Jintur Dist. Parbhani …. (Orig. Plaintiff)2.Dropatrao S/o. Munjaji Levade (Died)3.Subhadrabai W/o. Dropatrao Levade,Age : 68 years, Occu: Household,R/o. Jijamata Road, Parbhani Dist. Parbhani4.Munjaji S/o Dropatrao Levade (Died)Through legal heirs4/1.Rajamati w/o Munjaji Levade,Age: 41 years, Occu: Household,4/2.Jaishri D/o. Munjaji Levade,Age: 24 years, Occu: Household,R/o. Jijamata Road, Parbhani.Tq. & Dist. Parbhnai4/3.Rani W/o Vithal Bande,Age: 25 years, Occu: Household,R/o. Kanosa, Tq. Basmath, Dist Hingoli5.Indrajeet S/o. Munjaji Levade,Age: 28 years, Occu: agri.R/o. Jijamata Road, Parbhani,Tq. & Dist. Parbhani6.Madhukar S/o. Munjaji Levade,Age: 26 years, Occu: Agri.R/o. Jijamata Road, Parbhani,Tq. & Dist. Parbhani.7.Raju @ Ambadas S/o. Sambhaji Gore,Age: 45 years, Occu: Agri. 1 of 6
Legal Reasoning
(( 2 ))WP-4465-25R/o. Kawatha, Tq. & Dist. Nanded.8.Gajanan S/o. Sambhaji Gore,Age: 42 years, Occu: Agri.R/o. Kawatha, Tq. & Dist. Nanded.9.Maroti S/o. Sambhaji Gore,Age: 39 years, Occu: Agri.R/o. Kawatha, Tq. & Dist. Nanded.….RESPONDENTS(Res. Nos. 2 to 6 are Orig. Defendant Nos.1 to 5 & Res. Nos. 7 to 9 are Orig. Defendant Nos.7 to 9)….Mr. S. K. Chavan, Advocate for petitionerMr. S. S. Bora, Advocate for respondent Nos.3 to 9….CORAM: S. G. CHAPALGAONKAR, J.DATE21.07.2025ORDER :- 1.The petitioner (Orig. Defendant No.6) impugns order dated01.03.2025 passed by learned Civil Judge Junior Division, Parbhani belowExhibit-108 in Regular Civil Suit No.366 of 2012, thereby rejectingapplication of petitioner for recalling/setting aside ‘No W.S.’ order. 2.Respondent No.1 (Orig. Plaintiff) instituted Regular Civil SuitNo.366 of 2012 before learned Civil Judge Junior Division, Parbhaniseeking relief of partition, separate possession, declaration and perpetualinjunction in respect of suit properties. On 27.07.2012, petitioner wasserved with suit summons. She caused her appearance through Advocate on01.08.2012. Record indicates that despite several chances, petitioner failedto file her written statement. Ultimately, learned Trial Court passed order 2 of 6 (( 3 ))WP-4465-25dated 01.02.2013 to proceed against petitioner without written statement.The Trial Court framed issues. On 28.09.2021, plaintiff filed her evidenceaffidavit. While cross-examination of plaintiff was in process, respondentNo.1-plaintiff filed application seeking amendment in plaint. The saidapplication was rejected. Respondent No.1-plaintiff then filed writ petitionNo.12501 of 2022 before this Hon’ble Court challenging rejection ofamendment application. However, said writ petition came to be dismissedon 26.06.2024. After dismissal of writ petition, Trial Court again issuednotices. Petitioner received notice and then approached her Advocate, whohad by then joined Government service. Petitioner then engaged anotherAdvocate and filed application for setting aside NO W.S. order dated01.02.2013, which came to be rejected by impugned order. 3.Mr. S. K. Chavan, learned Advocate appearing for petitionersubmits that Regular Civil Suit No.366 of 2012 has been filed seekingdecree of partition and separate possession. In absence of petitioner’swritten statement, great prejudice would be caused to her. Suit is at thestage of plaintiff’s evidence. Petitioner is lady and she was not properlyadvised. He would, therefore, urge to recall/set aside No W.S. order dated01.02.2013 and permit her to file written statement by allowing applicationExhibit-108. 3 of 6 (( 4 ))WP-4465-254.Per contra, Mr. Bora, learned Advocate appearing forrespondent Nos.3 to 9 vehemently opposes writ petition and supportsimpugned order. 5.Having considered submissions advanced and on perusal ofrecord it is apparent that petitioner had caused her appearance in suit on01.08.2012. No W.S. order has been passed against her on 01.02.2013 aftergiving several chances to file written statement. Application Exhibit-108has been filed on 11.02.2025 i.e., almost twelve (12) years after passing NoW.S. order. The reason given for inordinate delay of almost 12 years is thatpetitioner came to know about such order on 13.01.2025, when she wasserved upon second Court notice. It is sought to be contend that there wascommunication gap between petitioner and her Advocate. Petitioner statesin paragraph No.2 of writ petition that on 01.08.2012, she appeared throughAdvocate Kaldate, who is her nephew. The aforesaid sequence of eventswould show that petitioner has not tendered any explanation for not filingwritten statement in spite of extension granted by Trial Court till 01.02.2013i.e., for the period of almost seven months after service of suit summons.Even from the date of No W.S order dated 01.02.2013 till 2025, noexplanation is given for not filing application for setting aside No W.S.order. 4 of 6 (( 5 ))WP-4465-256.In this background, reference can be given to judgment of thisCourt in case of Parasmal Daulatram Jain Vs. Rameshwar RathanlalKarwa reported in 2020 (1) BomCR 435, wherein after giving reference tojudgment of Hon’ble Supreme Court in case of Kailas Vs. Nanhku &Others reported in (20050 4 SCC 480, following observations are made.“The Supreme Court has construed the provision as directory andnot mandatory. However, the Supreme Court went on to administer a note ofcaution that the Court may not be misunderstood as nullifying the entireforce and impact and the entire life and vigour of the said provision. Thus,the Supreme Court in terms observed that ordinarily, the time scheduleprescribed by Order VIII Rule 1 has to be honoured. The extension of timeshall only be by way of exception and for reasons to be recorded in writing.It was further ruled in clear that unambiguous terms that in no case thedefendant be permitted to seek extension of time when the Court is satisfiedthat it is a case of laxity or gross negligence on the part of the defendant.Undoubtedly, the Supreme Court concluded that no straight-jacket formulacan be laid down except that the observance of the time schedulecontemplated by Order VIII Rule 1 shall be the rule and departuretherefrom an exception, made for satisfactory reasons only.”The aforesaid observations of this Court are specifically derived fromguidelines laid down by Hon’ble Supreme Court in case of Kailas Vs.Nanhku & Others, wherein caution note is added that extension of timeshall only be exceptional and for reasons to be recorded in writing,howsoever brief they may be. Similarly, in case of R. N. Jadi Vs. 5 of 6 (( 6 ))WP-4465-25Subhashchandra, reported in (2007) 6 SCC 420, Hon’ble Supreme Courtobserved as under.“A dispensation that makes Order VIII Rule 1 directory, leaving it tothe Courts to extend the time indiscriminately would tend to defeat theobject sought to be achieved by the amendments to the Code. It is,therefore, necessary to emphasise that the grant of extension of time beyond30 days is not automatic, that it should be exercised with caution and foradequate reasons and that an extension of time beyond 90 days of theservice of summons must be granted only based on a clear satisfaction ofthe justification for granting such extension, the Court being conscious ofthe fact that even the power of the Court for extension inhering in Section148 of the Code, has also been restricted by the legislature. It would beproper to encourage the belief in litigants that the imperative of Order VIIIRule 1 must be adhered to and that only in rare and exceptional cases, thebreach thereof will be condoned.”In view of aforesaid exposition of law, impugned order cannot befaulted. No jurisdictional error is brought to the notice of this Court tocause interference under Article 227 of Constitution of India. 7.Hence, writ petition stands dismissed accordingly. [ S. G. CHAPALGAONKAR, J. ] HRJadhav 6 of 6