High Court
Legal Reasoning
944 wp 13552 2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 13552 OF 2024Ganpat s/o Tukaram Mate,Age : 53 years, Occ. Agri.,R/o Dolsane, Tq. Sangamner,Dist. Ahmednagar… PETITIONERVERSUS1.Dinkar s/o Thaka Dhawle,Age : 70 years, Occ. Agri.,2.Maruti s/o Thaka Dhawle,Age : 60 years, Occ. Agri.,3.Tulshiram Thaka Dhawle,Age : 55 years, Occ. Agri.,All R/o Dolsana, Tq. Sangamner,Dist. Ahmednagar… RESPONDENTS•Mr. Vijay Shivaji Wakale, Advocate for the Petitioner•Mr. S. S. Dixit, Advocate for Respondent Nos. 1 to 3CORAM:ROHIT W. JOSHI, J.DATE:10th JUNE, 2025JUDGMENT:1.The petitioner takes exception to the order dated15.10.2024 passed by the Joint Civil Judge Junior Division, Sangamnerin R.C.S. No. 882/2019 rejecting application filed by the petitioner -original defendant seeking permission to file written statement onrecord. komal kamble 1/6 944 wp 13552 20242.Perusal of the application will demonstrate that according tothe defendant, after the application for grant of temporary injunctionwas rejected by the learned Trial Court, plaintiffs had assured thedefendant - petitioner that they will withdraw the suit. It is stated thatrelying on the assurance given by the plaintiffs, the defendant did notcontest the matter diligently and also did not file the written statement.The application was filed when the suit was posted for final arguments.The said application is rejected by the learned Trial Court vide orderdated 15.10.2024, which is impugned in the present petition. 3.The petitioner was served with the suit summons and hadentered appearance in the suit on 19.08.2019. Since the petitioner didnot file written statement within the stipulated period, order to proceedwithout written statement of the petitioner was passed by the learnedTrial Court on 22.11.2019. The plaintiffs filed an affidavit ofexamination-in-chief on 27.02.2020 vide ‘Exhibit 11’. The defendant didnot cross-examine the plaintiffs and an order to proceed without cross-examination came to be passed by the learned Trial Court on13.09.2023. It would be pertinent to mention that the plaintiffs had filedan application for measurement of the suit property to CourtCommissioner, which was allowed vide order dated 14.09.2021 andthereafter, Court Commissioner had carried out measurement of the suitkomal kamble 2/6 944 wp 13552 2024property on 01.09.2022. The petitioner was present at the time ofmeasurement. The plaintiffs had examined the Tahsil Inspector of LandRecord (TILR) and had closed the evidence by filing pursis. Order toproceed without cross-examination of TILR was passed on 05.01.2024.The matter was posted for final arguments on 15.07.2024, on which datepetitioner - defendant engaged another advocate in the matter. He filedan application seeking adjournment for advancing final argument.Thereafter, the petitioner filed application dated 23.09.2024 seekingpermission to file written statement. 4.Perusal of the order passed by the learned Trial Courtparticularly paragraph 9 and 10 thereof, will demonstrate that thepetitioner was aware of the fact that the plaintiffs were prosecuting thesuit. The learned Trial Court referred to the dates, when the advocate forthe petitioner - defendant appeared in the matter intermittently. It is alsoobserved that the measurement of suit property was carried out on01.09.2022 in the presence of the petitioner - defendant. The learnedTrial Court has rightly observed that the petitioner - defendant waskeeping a track of the matter discreetly and filed the application byengaging another advocate at the stage, when the matter was posted forfinal argument. The learned counsel for respondents - plaintiffs statesthat in fact the plaintiffs had advanced final argument in the matter andan order to proceed without argument of the defendant – petitioner waskomal kamble 3/6 944 wp 13552 2024also passed by the learned Trial Court. The learned Trial Court has alsoobserved that the application was filed at the stage, when the suit was tobe posted for passing the judgment. The conduct of the defendant -petitioner speaks for itself.5.There is a delay of around further 1800 days in filing theapplication seeking permission to file written statement by recalling ‘NoWS’ order. The perusal of record of the case will indicate that thepetitioner has willfully avoided to file written statement in theproceeding and was all the while keeping track of the matter. Theexplanation offered by the petitioner that assurance was given by therespondents to withdraw the suit does not appeal to reason. Theprogress of the suit which was being monitored by the petitioner andmost importantly measurement by Court Commissioner in the presenceof petitioner are sufficient to belie the explanation. The learned TrialCourt has recorded elaborate reasons for rejecting the application filedby the petitioner seeking permission to file written statement. Thereasons recorded by the learned Trial Court are based on record of thecase. The reasons recorded as just and proper. 6.The learned advocate for the petitioner placed reliance onorder dated 09.05.2022 by the Hon’ble Supreme Court in the matter ofkomal kamble 4/6
Legal Reasoning
944 wp 13552 2024Bharat Kalra Vs. Raj Kishan Chabra reported in Civil Appeal No. 3788 of2022 (@SLP(C) No. 63 of 2022, to contend that permission to filewritten statement ought to have been granted by imposing appropriatecosts. The said order merely records that provision or order 8, Rule 1 isdirectory and not mandatory. In the said, there was a delay of 193 daysin filing written statement. The facts of the present case as recordedabove are completely different. The order, therefore, does not help thecase of the petitioner. As against this, the learned counsel forrespondents has rightly placed reliance on the following decisions :(i)Atcom Technologies Limited Vs. Y. A. Chunwala and Co. and Ors. reported in 2019 (2) Mh.L.J. 26(ii)Bhaskar Mahadeo Mutke Vs. Nitin Mahadeo Jawale and Ors. decided on 12.04.2024 by this Court in Writ Petition No. 15056 of 2019 (iii)Ningappa Maruti Kumbhar and Ors. Vs. Iswar Kalappa Madkari and Ors. decided on 15.10.2019 by HighCourt of Bombay in Writ Petition No. 10239 of 2017 (iv)Desh Raj Vs. Balkishan (D) through Proposed L.R. reported in AIR 2020 SC 6217.Abovementioned decisions lay down that delay caused infiling writ petition cannot be condoned merely asking and normally thekomal kamble 5/6
Decision
944 wp 13552 2024written statement should be filed within the stipulated period of 30 daysand for reasons to be recorded, period can be extended up to 90 days. Inextraordinary circumstances only period can be extended beyond 90days.8.In view of the aforesaid, the impugned order does notwarrant any interference. The petition is dismissed with no order as tocosts. [ROHIT W. JOSHI]JUDGEkomal kamble 6/6