High Court
Legal Reasoning
1 14IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD14 WRIT PETITION NO. 207 OF 2024.DINESH BALKRUSHNA TIWARIVERSUS1.CHHAYA CHANDRAPRAKASH TIWARI2.ASHOK BALKRUSHNA TIWARI3.KIRAN CHANDRAPRAKASH TIWARI4.PRACHI CHANDRAPRAKASH TIWARI5.MANGALA NILKANT TIWARI6.PUNAM ASHOK KUMARJI SHARMA...Advocate for the Petitioner : Mr. Sushant Baburao ChoudhariAdvocate for Respondent No.1 : Mr. P. P. Patni h/f. Mr. P. F. Patni...CORAM:ARUN R. PEDNEKER, J.DATE:22nd JANUARY, 2024PER COURT:1.Heard.2.Respondent No.1 / Original Plaintiff filed a suit for partitionand separate possession along with other prayers. The Petitioner /Defendant No.1 in the instant case is challenging the impugned orderdated 04.12.2023, below Exhibit – 122 in Special Civil Suit No.315 of2012, passed by the 6th Joint Civil Judge, Senior Division, Aurangabadrefusing to set aside no written statement order dated 12.06.2013 andpermit the petitioner to file the written statement. 2 143.The facts giving rise to the present petition can besummarized as under:A.Respondent No.1 filed a suit for partition andseparate possession. The parties are related inter se. Thepetitioner appeared through an advocate, who filed theVakilpatra on 18.01.2013, however, the advocate had notfiled written statement and, as such, no written statementorder was passed, dated 12.06.2013.B.It is the contention of the petitioner that theadvocate for the petitioner has left the practice. As such, thepetitioner had appointed a new advocate, he moved anapplication for setting aside the no written statement orderpassed against the defendant and by order dated29.04.2019, the application at Exhibit 94 was rejected andwas not found tenable. It is not disputed that this order isnot challenged by the petitioner till date. Thereafter, thepetitioner filed an interim application for setting aside nowritten statement order dated 12.06.2013, by changing hisadvocate on 13.09.2023. The learned 6th Joint Civil Judge,Senior Division, Aurangabad, by the impugned order dated04.12.2023, rejected the application filed by the petitioner.Challenging the impugned order, the present writ petition isfiled.4.The learned counsel for the petitioner submits that,although, there is a delay in filing the written statement, the suit has notproceeded substantially and that only issues are framed in the year -
Legal Reasoning
3 142023 and, as such, in the event, the written statement is accepted, noprejudice would be caused. The learned counsel submits that theadvocate of the petitioner had left practice and, as such, a new advocatewas engaged to defend the case of the petitioner. Thereafter, he alsofailed to get appropriate order and another advocate was appointed inthe year - 2023 and the new advocate appointed has moved theapplication in the year - 2023 for setting aside the no written statementorder. The learned counsel submits that no prejudice would be causedand some costs may be imposed and no written statement order be setaside and the petitioner be permitted to file written statement in thematter. The learned counsel has also relied upon the judgment of thiscourt passed in the case of Adamji Gulamhussein Tavawalla Vs. Mr.sMaria Emillia Vaz & Ors., 2018 (6) ALL MR 697, wherein this court, atpara 8, has observed as under:-“8.It is true that there is inordinate and enormous delayof 12 years. The reason given therefor also may not bestrictly speaking sufficient to condone the delay but then thesubstantive cause of justice requires that the matter shouldbe decided on merits, especially when during all these 12years, no progress is made in the suit. It is not that the suit isdecided or is at advance stage of hearing, so that prejudicewould be caused to the respondent, if the written statementis permitted to be brought on record. Therefore, if thewritten statement is allowed to be brought on record, thematter can be decided on merits instead of being decided on 4 14technical grounds. Hence, considering peculiar facts of thiscase only, the delay deserves to be condoned and the writtenstatement needs to be brought on record.”5.The learned counsel appearing for the respondent reliedupon the judgment of the Hon’ble Supreme Court in the case of AtcomTechnologies Ltd. Vs. Y. A. Chunawala and Company and others, 2019 (2)Mh.L.J. 26. The Hon’ble Supreme Court, at para 17, has observed asunder:-“17.We fail to persuade ourselves with this kind ofreasoning given by the High Court in condoning the delay,thereby disregarding the provisions of Order VIII, Rule 1 ofthe Code of Civil Procedure, 1908 and the spirit behind it.This reason of the High Court that delay was condoned ‘bybalancing the rights and equities’ is far-fetched and, in theprocess, abnormal delay in filing the written statement iscondoned without addressing the relevant factor, viz.whether the respondents had furnished proper andsatisfactory explanation for such a delay. The approach ofthe High Court is clearly erroneous in law and cannot becountenanced. No doubt, the provisions of Order VIII, Rule 1of Code of Civil Procedure, 1908 are procedural in natureand, therefore, hand made of justice. However, that wouldnot mean that the defendant has right to take as much timeas he wants in filing the written statement, without givingconvincing and cogent reasons for delay and the High Courthas to condone it mechanically. It is also to be borne in mindthat when the matter was listed on January 29, 2015, it was 5 14specifically recorded that no written statement was filed andthe two suits were adjourned for ex-parte decree. In othersuit i.e . Suit No.3813 of 2000, similar Notice of Motionseeking condonation of delay was rejected though itcontained same kind of explanation and that order has beenupheld till this Court. On this ground also, there was noreason to take a contrary view in the instant matter whenboth the suits were taken up together and proceedsimultaneously.”6.Considering the submissions, it is to be noticed that earlieran application was filed for setting aside the no written statement order,which was rejected by the trial court by order dated 29.04.2019. The saidorder is not challenged by the petitioner and still in operation. Thereafter,subsequent application is filed for setting aside the no written statementorder in which the present impugned order is passed.7.There is a substantial delay in applying for setting aside theno written statement order, more than 10 years period has lapsed.Although, the suit is only at the stage, where issues are formulated andno evidence is recorded. The Hon’ble Supreme Court court in the abovejudgment of Atcom Technologies Ltd. (supra), has not permitted theapproach of allowing the written statement by reason only based onequity. The petitioner has to make out a case, why he has not filed thatapplication. The petitioner has entered appearance through an advocate
Decision
6 14in the year 2013 itself. No written statement was filed by the petitionerand no written statement order was passed on 12.06.2013. The petitionerhas filed an application in the year 2019 for setting aside the no writtenstatement order, which was rejected and, hence, for the same cause,second application is not maintainable. 8.In view of the above and as no sufficient reasons being madeout to set aside the no written statement order, the impugned order dated04.12.2023, is maintained and the writ petition is dismissed. [ARUN R. PEDNEKER, J.]marathe