Allowed

Chandarbai Namdeo Motegaonkar and Another v. Shamal Govind Chamale and Others

Bombay HC2 Apr 2013WP/1674/2013

Case brief

AI extract

What is this about?

Single Judge dismissed an appeal from a Single Judge's order which rejected an application to set aside an ex-parte order in a partition suit. The High Court set aside the rejection, allowed the application, and ordered costs and a written statement to be filed.

What did the court decide?

Ex-parte order quashed; Application allowed with payment of Rs. 20,000 costs; Written statement to be filed within 4 weeks.

Chandarbai Namdeo Motegaonkar and Another Vs Shamal Govind Chamale… — Partition | Bombay HC (2013)

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902 wp.1674.13

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THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION

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WRIT PETITION NO. 1674 OF 2013

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Chandarbai w/o Namdeo Motegaonkar, Age. 55 yrs, Occ. Agril. H.H., R/o. Samsapur, Ta. Renapur, Dist. Latur.

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Sundarbai w/o Pralhad Ugile, Age. 54 yrs, Occ. H.H., R/o. Near Aradwad Hospital, Ambajogai Road, Ta. and Dist. Latur. ... PETITIONERS

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V E R S U S

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Shamal w/o Govind Chamale, Age. 30 yrs, Occ. H.H.,

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Sheetal d/o Govind Chamale, Age. 15 yrs, Occ. Minor, U/g. her mother Shamal w/o Govind Chamale, Both R/o. Mahalangrawadi, Ta. Chakur, Dist. Latur.

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Govind s/o Jivba Chamale, Age. 35 yrs, Occ. Agri.

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Sandipan s/o Jivba Chamale, Age. 45 yrs, Occ. Agri.

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Sangita w/o Govind Chamale, Age. 25 yrs, Occ. H.H.,

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Arti d/o Govind Chamale, Age 07 yrs, Occ. Minor, U/G. Sangita w/o Govind Chamale.

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902 wp.1674.13

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7.	Omkar s/o Govind Chamale, Age. 05 yrs, Occ. Minor, U/G. Sangita w/o Govind Chamale.
8.	Gopal s/o Jivba Chamale, Age. 35 yrs, Occ. Agri.
9.	Muktabai w/o Jivba Chamale, Age. 80 yrs, Occ. H.H.,
10.	Rajkumar s/o Jivba Chamale, Age. 35 yrs., Occ. Agri.
	All R/o. Dhanegaon, Ta. and Dist. Latur.
11.	Indirabai w/o Tukaram Mandade, Age. 56 yrs, Occ. H.H., R/o. Gondri, Ta. Ausa, Dist. Latur.
12.	Vimalbai w/o Ramkishan Mekale, Age 52 yrs, Occ. H.H., R/o. Sugaon, Ta. Chakur, Dist. Latur. ...RESPONDENTS
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Mr. N Mr. A	.D. Kendre, Advocate for the Petitioners. rvind N. Gaddime, Advocate for Respondent Nos.1 and 2. -----

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CORAM : S.V.GANGAPURWALA, J. DATE : 02nd April, 2013.

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ORAL JUDGMENT:

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1 Rule.

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2 Rule made returnable forthwith. With the consent of the parties, taken up for final hearing.

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902 wp.1674.13

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3 Respondent Nos.1 and 2 have filed suit for partition and separate possession. Some of the Defendants appeared pursuant to the service of summons. Some of the Defendants remained ex-parte. Present Petitioners, who are Defendant Nos.9 and 11 were proceeded ex-parte. They filed an application for setting side the ex-parte order. The said application is rejected. Aggrieved thereby, the present petition.

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4 Mr.Kendre, the learned counsel for the Petitioners submits that in fact the summons were not served on the Petitioners. The Petitioners reside at Latur and the summons are served on the sons of the Petitioners at village Samsapur and so could not get the knowledge of the proceedings. The Petitioners are from orthodox family.

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5 According to the learned counsel, the Petitioners deserve to be given an opportunity to contest the matter on merits.

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6 Mr.Gaddime, the learned counsel for the Plaintiffs, supports the order and submits that the Petitioners have knowledge of the proceedings. The summons are duly served. For more than three years, the Petitioners did not take any steps. The Petitioners have not even filed application for condonation of delay. The said application could not have been considered. The learned counsel relies on the judgment of the learned Single Judge of this Court in the case of Akola Zilla Parishad, Akola Vs. Laxman Baluji Manatkar and another , reported in [ 1980 Mh.L.J. 675] . According to the learned counsel, the suit has proceeded further. It is at the stage of evidence. No sufficient cause is stated for non

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902 wp.1674.13

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appearance of the Petitioners or filing the application earlier.

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7 With the assistance of the learned counsel, I have gone through the order. No doubt after about three years of the service of summons, the Petitioners have filed the application. According to the Petitioners, the summons were not served on the Petitioners, but were served on the sons of the Petitioners. It would not be fruitful to inter into the said debate at this stage. The matter is still pending with the Court. It is at the stage of evidence wherein, the Plaintiffs have adduced the evidence. The suit is a substantive suit for partition and separate possession. In such a suit, each and every party is in the position of a Plaintiff. The Court while passing the order has not dilated as to whether the summons were served on the Petitioners or sons of the Petitioners and whether the same was a proper service or not. The judgment in the case of Akola Zilla Parishad (supra) may not be squarely applicable in the present case in light of the facts narrated above.

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8 The suit being a substantive suit for partition and separate possession and the rights and interest of the parties in immovable property is involved, it would be appropriate to give an opportunity to the Petitioners to contest the suit. At the same time, the Petitioners deserve to be mulct with heavy cost.

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9 In light of the above, I pass the following order:

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i. The impugned order is quashed and set aside ;

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902 wp.1674.13

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ii. The Application ( Exhibit – 112 ) is allowed on condition that the Petitioners pay costs of Rs. 20,000/- (Rupees Twenty Thousand only) i.e. Rs.10,000/- (Rupees Ten Thousand only) to each Plaintiffs within a period of three weeks from today ;

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iii. If the costs is deposited in the trial Court, the Plaintiffs are entitled to withdraw the same ;

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iv. The Petitioners shall file written statement within a period of four weeks from today ;

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v. The trial Court shall thereafter, expeditiously proceed with the suit ; and

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vi. The parties shall cooperate the expeditious disposal of the suit.

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vii. Rule is made absolute on above terms.

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viii. Writ petition stands disposed of.

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[ S.V.GANGAPURWALA, J. ]

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ndm

Chandarbai Namdeo Motegaonkar and Another v. Shamal Govind Chamale and Others

Case brief

What is this about?

What did the court decide?

Chandarbai Namdeo Motegaonkar and Another v. Shamal Govind Chamale and Others

Case brief

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