Partly allowed

Surjee Lakhansingh Gala v. Prakash Ramakant Kamathe

Bombay HC25 Sept 2013WP/5821/2013

Case brief

AI extract

What is this about?

Writ petition challenging a trial court order that rejected an application to set aside a 'no written statement' order. The High Court quashed the impugned order and the 'no W.S. Order', allowing the petition to file a written statement after depositing Rs. 5000 as costs.

What did the court decide?

Impugned order and 'no W.S. Order' quashed. Petitioner allowed to file written statement within four weeks upon depositing Rs. 5000.

Surjee Lakhansingh Gala Vs Prakash Ramakant Kamathe — Partition | Bombay HC (2013)

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1 / 3 WP/ 5821/2013

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Tapadia RR/B.2

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5821 OF 2013

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Surjee Lakhansingh Gala

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..Petitioner

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Prakash Ramakant Kamathe

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.. Respondent

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Mr. R.S.Datar, Advocate for the Petitioner. Mr. C.K.Kotwal, Advocate for the Respondent.

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CORAM : R.G.KETKAR,J. DATE : 25/09/2013

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PC:

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Heard Mr.R.S.Datar, learned counsel for the petitioner and Mr.C.K.Kotwal, learned counsel for the respondent at length.

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Rule. Mr. Kotwal waives service on behalf of the respondent. At the request of and by consent of learned counsel appearing for the parties, Rule is made returnable forthwith and the Petition is taken up for final hearing.

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By this petition under Article 227 of the Constitution of India, the original defendant has challenged the Judgment and order dated 3.4.2013 passed by the learned Civil Judge, Sr.Dn., Thane, below Exhibit-19 in Civil Suit no.21 of 2011. By that order, the learned trial Judge rejected the application made by the defendant for setting aside 'no W.S. Order' dated 13.8.2012.

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In support of this petition, Mr Datar submitted that the respondent-plaintiff has instituted the suit for recovery of possession of the suit premises against the petitioner. The suit premises is Room no.15, 2^nd floor, Kamathe Bhuwan, Chatrapati

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Sambhaji Path, Ghantali, Thane (w) 400602 (for short, 'suit premises'). The suit premises is given for residential purpose. He submitted that the defendant is 82 years old and because of his illness, he could not collect necessary documents for filing written statement. The learned trial Judge passed 'no W.S. Order' on 13.8.2012. He filed application on 28.11.2012 for setting aside 'no W.S. Order' and by the impugned order the learned trial Judge rejected that application. Mr.Datar submitted that by imposing reasonable costs, the impugned order may be set aside and the petitioner may be permitted to file written statement on record failing which valuable right of the defendant to defend the suit will be lost forever.

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On the other hand, Mr Kotwal supported the impugned order. He invited my attention to the affidavit of the respondent opposing the petition. He submitted that the petitioner has not substantiated his case that he was prevented in filing written statement on account of the illness. No documents are produced to substantiate the said plea. He, therefore, submitted that no case is made out for setting aside 'no W.S. Order'.

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I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused the material on record. It is not in dispute that defendant is 82 years old. The reason given for not filing written statement is that he could not collect documents due to illness. Having regard to

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his advance age, the said plea could not have been disbelieved. The learned trial Judge, instead of dismissing the application, ought to have allowed the same subject to imposing costs. It is material to note that if the defendant is not permitted to file written statement, his defence would be lost forever. Mr Datar submits that the written statement is ready and within four weeks from today he will file the same in the trial Court. In view thereof, the writ petition is disposed of in the following terms.

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(i) The impugned order dated 3.4.2013 passed by the learned trial Judge below Exhibit-19 in Special Civil Suit No.21 of 2011 is quashed and set aside. Application at Exhibit-19 is allowed and 'no W.S. Order' dated 13.8.2012 stands quashed and set aside subject to the petitioner depositing costs of Rs.5000/- within two weeks from today. The deposit of costs shall be a condition precedent. The respondent is permitted to withdraw the said amount unconditionally.

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(ii) The petitioner shall file written statement in the trial Court within four weeks from today. Rule is made absolute accordingly.

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(R.G.KETKAR, J.)

Surjee Lakhansingh Gala v. Prakash Ramakant Kamathe

Case brief

What is this about?

What did the court decide?

Surjee Lakhansingh Gala v. Prakash Ramakant Kamathe

Case brief

What is this about?

What did the court decide?

What the court decided

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