Dismissed

Kerba Dagadu Pawar and Ors. v. Papabhai Imambhai Atar

Bombay HC30 Sept 2011WP/3845/2010

Case brief

AI extract

What is this about?

In a special civil matter, the High Court of Bombay dismissed an application seeking to set aside an order refusing permission to file a written statement due to non-compliance with time limits, noting a lack of specific grounds in the application.

What did the court decide?

Petitioner to pay Rs. 1,000 towards costs; Respondent to receive Rs. 1,000 from deposited sum; remaining Rs. 9,000 to be released to respondent.

Kerba Dagadu Pawar and Ors. Vs Papabhai… — Civil Procedure and Limitation | Bombay HC (2011)

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USJ

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3845 OF 2010

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Kerba Dagadu Pawar & Ors. .. Petitioners

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v/s.

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Papabhai Imambhai Atar .. Respondent

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Mr. Milind Deshmukh for the petitioners Mr. Vikas Shivarkar for respondent no.1

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CORAM : R.Y.GANOO, J DATE : 30^th SEPTEMBER,2011.

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P.C. :

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The respondent herein had filed R.C. Suit No.82 of 2009 in the

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Court of learned Civil Judge, Senior Division, Saswad, Dist. Pune. After the filing of the aforesaid suit, the petitioner-defendant appeared before the learned Judge on his own on 25^th June, 2009 without formal writ of

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summons being served upon him. If this is so, the date of service of writ of

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summons will have to be treated as 25^th June, 2009. The petitioner did

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not file the written statement up to 7^th October, 2009. Therefore, the learned Civil Judge, Junior Division, Saswad passed an order saying that

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the suit shall proceed without say and written statement.

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The petitioner filed an application below Exh.21 praying that no written statement order be set aside and sought permission to file the written statement. This application at Exh. 21 was rejected by the learned Judge Civil Judge, Junior Division by order dated 6^th January, 2010. The petitioner has challenged this order. This application below Exh.21 was filed on 8^th December, 2009.

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Considering the relevant dates, it is clear that the petitioner did not file written statement in time and that is how the order dated 7^th October, 2009 is passed.

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The application at Exh.21 does not mention specific grounds as to why the petitioner could not file written statement within the period permissible as per the provisions of Civil Procedure Code. The only reason mentioned in para 3 of the said application is that the petitioner could not get necessary old papers and information for the purposes of filing the written statement. In my view, this explanation without necessary details and the types of documents which was required by the petitioner for filing

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written statement, cannot be accepted. If the petitioner has not given appropriate reasons and or explanation as to why he could not file the written statement within permissible period, the application cannot be entertained. He has referred to the judgment in the case of Shelna S. Sawant vs. Sayajirao Ganpatrao Patil, 2004 Vol.4, Mh.LJ 419.

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The view taken by the learned Civil Judge, Junior Division, Saswad is proper on the facts appearing in this case. Hence, no interference is required in the impugned order dated 6^th January, 2011. The petition is required to be dismissed at the stage of admission.

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At the stage of issue of notice, this Court has directed to the petitioner to deposit a sum of Rs.10,000/- thereby if the petition is to be dismissed, the respondent’s interest could be protected by awarding him necessary costs. In my view, the respondent in a case like this is entitled to have costs of Rs.1,000/- so far as this petition is concernd. Hence, appropriate order will have to be passed directing the office to pay to the respondent a sum of Rs.1,000/- and repay the sum of Rs.9,000/- out

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of the total amount of Rs.10,000/- which has been deposited by the petitioner. Hence, following order is passed.

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ORDER

(i) For the reasons mentioned aforesaid, no interference is required in

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the impugned order dated 6^th January, 2010.

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(ii) Petitioner to pay to respondent a sum of Rs.1,000/- by way of costs

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of this petition.

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(iii)Office is directed to pay to respondent no.1 a sum of Rs.1,000/- out

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of Rs.10,000/- which have been deposited by the petitioner and the office is also directed to repay to the respondent Rs.9,000/- without

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guarantee or security.

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(R.Y.GANOO, J.)

Kerba Dagadu Pawar and Ors. v. Papabhai Imambhai Atar

Case brief

What is this about?

What did the court decide?

Kerba Dagadu Pawar and Ors. v. Papabhai Imambhai Atar

Case brief

What is this about?

What did the court decide?

What the court decided

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