Dismissed

Laxman Ramachandra Kshirsagar v. Shivajirao Ramachandra Kshirsagar

Bombay HC4 Jul 2007WP/3667/2007

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a writ petition filed by a defendant seeking to file a Written Statement late. The Court held that the defendant's efforts were solely to protract proceedings and rejected the invocation of inherent jurisdiction under s. 151 CPC since express provisions existed.

What did the court decide?

Writ petition dismissed with exemplary costs.

Laxman Ramachandra Kshirsagar Vs Shivajirao… — Civil Procedure and Limitation | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 3667 OF 2007

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 Shri Laxman R. Kshirsagar. ..Petitioner.

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 V/s.

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 Shri Shivajirao R.Kshirsagar. ..Respondent.
 Mr.A.K.Suryawanshi for petitioner.

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 CORAM: A.M.KHANWILKAR,J

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 DATE : JULY 4, 2007.
P.C. :

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 1. It is seen that the request for time to file
 Written Statement was considered by the trial Judge
 for the first time on 31st January, 2006, when
 following order came to be passed.

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 "ORDER

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 No say filed. Hence considering this prof.
 application is allowed subject to payment of
 costs of Rs.300/- to the Government on or
 before next date."

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 The trial Judge then passed order on 20th February,
 2006, which reads thus:

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 "The defendant not deposited the costs as per
 order. Hence this application is rejected."

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 The above said orders were passed on the application
 preferred on behalf of the petitioner/defendant being
 Exh. 16, which discloses the ground that the
 defendant was unaware of filing of Written Statement
 within 90 days. Subsequently, another application
 was filed on behalf of the defendant which was
 numbered as Exh.30. Once again request was made to
 the trial Court for granting time to file Written
 Statement. The Court passed following order on 20th
 February, 2006, which reads thus:

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 As already order below Exh.16 is passed this
 application u/s.148 is not tenable. before
 passing the order below Exh.16 the concerned
 advocate appeared. Hence it can not be said
 that the advocate or the defendant gave no
 knowledge. Hence this application is
 rejected."

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 The earlier order has not been challenged by the
 petitioner/ defendant. Instead, fresh application
 came to be filed on behalf of the petitioner once
 again, more or less reiterating the same grounds,
 which were urged in the earlier application.
 Besides, it is now contended that due to mistake of
 the earlier advocate Written Statement could not be
 filed in time.

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 2. The fact remains that the first order

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 refusing request of the petitioner has not been
 challenged. Besides, the ground set up in the
 present application has been rightly negatived by the
 trial Judge in his order, which is impugned in the
 present petition dated 20th April, 2006.
 Significantly, this order is challenged for the first
 time by way of present Writ Petition instituted
 before this Court on 22nd January, 2007.

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 3. These circumstances leave no manner of doubt
 that the entire effort of the petitioner/defendant
 was to protract the proceeding. Indeed, the attempt
 was made on behalf of the petitioner to persuade the
 trial Judge to exercise powers under section 151 of
 the Code. The trial Court has rightly observed that
 when there is express provision in the Code, it is
 not open to the Civil Court to exercise inherent
 jurisdiction under section 151 of the Code. That
 view is unassailable. Taking any view of the matter,
 there is no merits in this petition. Hence
 dismissed.

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 4. In my view, such petition should be dismissed
 with exemplary costs, so that unscrupulous litigants
 will feel discouraged in protracting the proceeding
 in the manner, which has been done in this

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 proceeding. However, the defendant has obviously
 done so on legal advice, for which reason, I refrain
 myself from making any more comments.

Laxman Ramachandra Kshirsagar v. Shivajirao Ramachandra Kshirsagar

Case brief

What is this about?

What did the court decide?

Laxman Ramachandra Kshirsagar v. Shivajirao Ramachandra Kshirsagar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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