Allowed

Kabristan Vyavasthapan Committee, Fejiwade, through Secretary v. Ujjwal Shripatrao Lingras

Bombay HC9 Apr 2013WP/7707/2012

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay, in a writ petition, quashed the trial court's order rejecting applications for condonation of 75-day delay in filing a written statement, allowing the defendant to file the written statement while directing costs to the plaintiff.

What did the court decide?

Quashed impugned order dated 30.04.2011; Allowed applications Exhibit 12 and 16. Directed Petitioner to pay costs of Rs. 3,000 to Respondent.

Kabristan Vyavasthapan Committee, Fejiwade… — Civil Procedure and Limitation | Bombay HC (2013)

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32.wp.7707.12.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 7707 OF 2012

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Kabristan Vyavasthapan Committee ] At Fejiwade, Tal. Radhanagari, ] Dist. Kolhapur. ] Through Secretary, Salim Ismail ] Nawlekar, age 35 years, ] Occ. Service, R/o. Fejiwade, ] Tal. Radhanagari, Dist. Kolhapur ]..Petitioner

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-Versus-

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Ujjwal Shripatrao Lignras, ] Age adule, Occ. Agriculture, ] R/o. Rajendranagar Housing ] Society, Rajendranagar, ] Kolhapur . ]..Respondent

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Mr.Amit B. Borkar, Advocate for the Petitioner.

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Ms.Prachi Kadam i/b Rahul P. Walvekar, Advocate for the Respondent.

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CORAM : R.M. SAVANT, J. DATE : 9^TH APRIL 2013

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ORAL ORDER

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1 Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

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2 The writ jurisdiction of this Court is invoked against the order dated

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30.04.2011 passed by the learned Civil Judge, Junior Division,

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Radhanagari by which order the applications Exhibit 12 for setting aside

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S.K.Talekar

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“No written statement” order and for taking the written statement on record and Exhibit 16 for condonation of delay in filing the Written Statement filed by the Petitioner herein came to be rejected.

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The Suit in question being Regular Civil Suit No.47/2010 has been filed for mandatory injunction. There is a delay of about 75 days in filing the Written Statement. The reasons mentioned by the Petitioner/Applicant for the said delay in application Exhibit 12 were not found worthy of acceptance by the Trial Court. The Trial Court consequently rejected both the applications by the impugned order.

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3 Heard the learned counsel for the parties. It is trite that Order VIII, Rule 1 of Civil Procedure Code, 1908 is held to be directory and not mandatory and for good and sufficient reasons the delay in filing the Written Statement can be condoned. Delay in the instant case is of 75 days and the reason mentioned for not filing the Written Statement that the Petitioner is the concerned person was away from Kolhapur during the said period of 75 days. The said reason can be a plausible reason for the said delay. The Defendant has to be given an opportunity to defend the Suit on merits. The impugned order dated 30.04.2011 is accordingly quashed and set aside, resultantly, applications Exhibit 12 and 16 would stand allowed. The Petitioner/Defendant would be entitled

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to file its Written Statement which has been filed along with the said

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32.wp.7707.12.doc

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applications.

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4 In the facts and circumstances of the case, it would be just and proper to direct the Petitioner to pay costs of Rs.3,000/- (Rupees Three thousand only) to the Respondent herein i.e. the Original Plaintiff. The same to be done within a period of four weeks from date and the evidence to be produced in the Trial Court.

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Rule is accordingly made absolute in the aforesaid terms with the parties to bear the respective costs of the Petition.

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S.K.Talekar

Kabristan Vyavasthapan Committee, Fejiwade, through Secretary v. Ujjwal Shripatrao Lingras

Case brief

What is this about?

What did the court decide?

Kabristan Vyavasthapan Committee, Fejiwade, through Secretary v. Ujjwal Shripatrao Lingras

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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