Dismissed

Syed Mumtaz Ali Mehmood Ali v. Syed Zamin Ali S/O Syed Yunus Ali and Ors.

Bombay HC16 Jan 2012WP/413/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order rejecting the petitioner's application to set aside a 'No Written Statement' order passed in a civil suit for ownership and possession. The court held that the trial court properly exercised its discretion, considering the petitioner's negligence and procedural lapses.

What did the court decide?

The writ petition is dismissed with no order as to costs.

Syed Mumtaz Ali Mehmood Ali Vs Syed Zamin Ali… — Civil Procedure and Limitation | Bombay HC (2012)

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W.P.No.413/12

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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WRIT PETITION NO. 413 OF 2012

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.Shaikh Mujtaba Gulam Mustafa, advocate for the
petitioner.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 16.01.2012.

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PER COURT :

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Heard.

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The present Respondent No.4 has filed suit for declaration of ownership and recovery of possession initially against the present Respondent Nos.1 to 3. In the year 2006, the petitioner filed an application to implead himself as a party defendant. The said application was allowed. The petitioner was added as defendant No.4. Thereafter, the petitioner sought time to file written statement. Eventually on 20.6.2007, the Court passed an order of 'No Written Statement' against the petitioner. Thereafter, the evidence was recorded. The defendants also led their evidence and thereafter, the matter was fixed for final arguments. At the

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W.P.No.413/12

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stage when the matter was fixed for final arguments, the petitioner filed an application for setting aside 'No Written Statement' order. The Court rejected the said application. Aggrieved thereby, the present petition is filed.

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Mr.Mujtaba, learned counsel for the petitioner strenuously contends that the amended provisions of Order 8 Rule 1 of the C.P.C. are not applicable to the present case as the suit is filed in the year 2001 and the amended provision came into effect on 1.7.2002. The petitioner was added as a party in the year 2006 and as such the Court could not have resorted to the amended provision while dealing with the application for setting aside 'No Written Statement' order. The learned counsel contends that the petitioner is age old person. The advocate appearing for the petitioner at the relevant time did not intimate him that the Written Statement is not filed and did not participate in the proceedings. The petitioner should not suffer because of the fault of the advocate. The learned counsel submits that rule of procedure is hand made of justice and the substantive right of the parties should not be negated on account of procedural lapses.

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No doubt, this Court would be liberal in allowing a party to file Written Statement but the said approach would not mean that the plaintiff would be put in a disadvantageous position. The

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W.P.No.413/12

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perusal of the order of the trial court, it is manifest that the petitioner was throughout negligent in prosecuting the matter. The petitioner initially appointed advocate. Applications were filed seeking time to file Written Statement and eventually after granting number of adjournments, the Court was constrained to pass 'No Written Statement' order on 20.6.2007. The issues were framed on 29.12.2007. Thereafter the plaintiff examined five (5) witnesses and defendants Nos.1 to 3 also examined five witnesses. While

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P.W.2 Madhukar was examined, the advocate of the present petitioner did not appear. The witness was discharged without cross-examination on behalf of the defendant No.4. After P.W.3 was examined by the plaintiff, the present petitioner changed his advocate and engaged another advocate who appeared on 1.10.2011. He filed an application Exh.131, seeking time for crossexamination of witnesses of plaintiff. The Court allowed the said application on the cost of Rs.100/- (Rupees hundred only). The said cost is also not deposited by the petitioner. Thereafter, the defendant No.4 was not cross-examined though the advocate of the petitioner was present and now at the fag end when the plaintiff and the defendant Nos.1 to 3 have examined all their witnesses and the matter is kept for final arguments, the present application is filed. The Court has taken into consideration all these aspects and has passed the order. The discretion can not be exercised in favour of

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W.P.No.413/12

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such a litigant. The trial Court has properly exercised the discretion in favour of the plaintiff and has rejected the application and has taken a plausible view. This Court in its Writ jurisdiction under Article 227 of the Constitution of India, would not interfere if the discretion is properly exercised by the trial Court.

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In the result, the Writ Petition is dismissed. However, there shall be no order as to costs.

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(S.V.GANGAPURWALA,J.)

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Dt.16.01.2012. asp/office/wp413.12

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W.P.No.413/12

Syed Mumtaz Ali Mehmood Ali v. Syed Zamin Ali S/O Syed Yunus Ali and Ors.

Case brief

What is this about?

What did the court decide?

Syed Mumtaz Ali Mehmood Ali v. Syed Zamin Ali S/O Syed Yunus Ali and Ors.

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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