Disposed

Bhagwan Narayan Dhole and Ors. v. Arjun Narayan Dhole

Bombay HC16 Mar 2009WP/1573/2009

Case brief

AI extract

What is this about?

The High Court, exercising its discretionary jurisdiction, directed petitioners to move the Trial Court afresh for condonation of delay in filing a written statement after depositing costs, avoiding the need for respondent to appear before this Court, subject to respondent's right to recall.

What did the court decide?

Petitioners allowed to move Trial Court afresh for condonation of delay after depositing Rs. 3,000; Trial Court to assume impugned order set aside.

Bhagwan Narayan Dhole and Ors. Vs Arjun… — Civil Procedure and Limitation | Bombay HC (2009)

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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.1573 OF 2009

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 Shri Bhagwan N. Dhole & Ors. ..Petitioners.
 V/s.

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 Shri Arjun N. Dhole. ..Respondent.

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 Mr.A.P.Kulkarni for petitioners.

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 CORAM: A.M.KHANWILKAR,J

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 DATE : MARCH 16, 2009.

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P.C. :

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 1. Heard Counsel for the Petitioners.

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 2. Pursuant to the liberty granted in terms of

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 the Order dated 24th February, 2009, the Petitioner
 has filed affidavit of the concerned advocate giving
 specific details regarding the non-appearance and
 non-filing of written statement before the lower
 Court. Since this is a factual matrix and being
 stated for the first time before this Court, in my
 opinion, the appropriate course is to allow the
 Petitioners to move the Trial Court afresh for the
 same relief, which was prayed in Exh.33, so that the
 Trial Court can consider the efficacy of the
 affidavit filed by the Petitioners by giving
 opportunity to the otherside. All questions with

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 regard to the controversy as to whether there is good
 and sufficient cause for non-appearance of the
 Petitioner on the relevant dates and moreso,
 exceptional circumstances made out by the Petitioner
 for condoning delay in filing Written Statement
 beyond 90 days will have to be addressed afresh on
 its own merit in accordance with the law,
 uninfluenced by the order, which is impugned in this
 Writ Petition. The Trial Court may proceed on the
 assumption that the Order dated 17th July, 2008 has
 been set aside in terms of this Order. Indeed, the
 proposed application will have to be examined in the
 context of the situation occurring as on the date of
 filing of the Application Exh.33.

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 3. I am inclined to take recourse to such
 course, as it would avoid the respondent from
 incurring legal expenses for making appearance before
 this Court and deal with the issues raised by the
 Petitioners for the first time. Instead the said
 issues can be addressed before the lower Court, as is
 mentioned earlier. For this indulgence however, the
 Petitioner will have to compensate the Respondent by
 paying cost quantified at Rs.3,000/-.

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 4. It is also made clear that if the Respondent

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 has any reservation about this arrangement is free to
 apply for recall of the present order, so that the
 matter can proceed before this Court, if required.

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 5. Payment of cost is condition precedent for
 permitting filing of fresh application and producing
 the affidavit of the advocate before the lower Court.
 That be done within three weeks from today, failing
 which the Lower Court may proceed on the assumption
 that the Order dated 29th September, 2008 has been
 confirmed in terms of this order.

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 6. Petition disposed of on the above terms.

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(A.M.KHANWILKAR,J)

Bhagwan Narayan Dhole and Ors. v. Arjun Narayan Dhole

Case brief

What is this about?

What did the court decide?

Bhagwan Narayan Dhole and Ors. v. Arjun Narayan Dhole

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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