Allowed

Haribhau Narayanrao Nandkhedkar through Lrs Suvarna Haribhau Nandedkar and Others v. Sandeep Balasaheb Walke and Others

Bombay HC6 Jan 2021WP/4085/2019

Case brief

AI extract

What is this about?

The High Court of Bombay, Aurangabad Bench allowed a writ petition quashing an order that rejected the petitioners' belated appearance application in a specific performance suit. The Court held a pedantic, technical approach was incorrect, allowing appearance upon depositing costs.

What did the court decide?

Writ petition allowed; impugned order quashed; petitioners allowed to appear in suit upon depositing Rs. 5000/- within two weeks.

Haribhau Narayanrao Nandkhedkar through Lrs Suvarna… — Specific Performance | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.4085 OF 2019

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Haribhau s/o Narayanrao Nandkhedkar
Died – through His L.Rs.

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1. Suvarna w/o Haribhau Nandkhedkar, Age : 58 years, Occu. Household, R/o Ramkrishna Nagar, Near Vasantrao Naik Statue, Wasmath Road, Parbhani, Tq. and District Parbhani

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2. Vaibhav s/o Haribhau Nandkhedkar, Age : 37 years, Occu. Business, R/o Ramkrishna Nagar, Near Vasantrao Naik Statue, Wasmath Road, Parbhani, Tq. and District Parbhani

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3. Sou. Supriya w/o Sujit Kumbhar, Age : 32 years, Occu. Household, R/o Beside Shahnoormiya Dargah, PETITIONERS Aurangabad, District Aurangabad (Orig. Defendant Nos.1/1 to 1/4

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(Petitioner Nos.1 and 3 through
GPA Holder of Petitioner No.2)

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VERSUS

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1. Sandeep s/o Balasaheb Wakle, Age : 30 years, Occu. Agri., R/o Godawari Colony, Gangakhed, Tq. Gangakhed, Dist. Parbhani

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2. Vivek s/o Devikantrao Deshmukh, Age : 38 years, Occu. Architect, R/o Lokmanya Nagar, Parbhani, Tq. and District Parbhani

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WP4085-2019

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3. Vishal s/o Manoharrao Budhwant, Age : 40 years, Occu. Contractor, R/o Shivram Nagar, Parbhani, Tq. and District Parbhani

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4. Vijaya d/o Haribhau Nandkhedkar, Age : 27 years, Occu. Education, R/o Ramkrishna Nagar, Near Vasantrao Naik Statue, Wasmath Road, Parbhani, RESPONDENTS Tq. and District Parbhani (Respdts.No.1/Orig. Plaintiff and Defendant Nos.2 and 3)

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Mr. Pravin N. Kalani, Advocate for the petitioners
Mr. N.D. Kendre, Advocate for respondent No.1
Mr. S.G. Jadhavar, Advocate for respondent No.3

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CORAM :MANGESH S. PATIL, J.

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DATE :06.01.2021

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ORAL JUDGMENT:

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Heard.

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2. Rule. The Rule is made returnable forthwith. With the consent

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of both the sides, the matter is heard finally at the stage of admission.

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3. The petitioners are the original defendant Nos.1/1 to 1/ 4 in

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Special Civil Suit No.22/2014, who submitted an application (Exh-196)
requesting to set aside the order passed by the Court directing the suit to

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proceed ex parte against them, for their failure to appear inspite of service of
summons.

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WP4085-2019

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4.According to the petitioners, they were not at all served with
summons and it is only after getting knowledge about filing of the suit that
they appeared and preferred the application (Exh-196).

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5.The learned Advocate for respondent No.1, who is the original
plaintiff, submits that the application (Exh-196) was sans any reason for not
putting the appearance inspite of service of summons. The learned Judge has
specifically observed that the summons were duly served to these petitioners.
No error is committed by the learned Judge in rejecting the application (Exh-
196) in the facts and circumstances.

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6.It is trite that the procedure is a handmaid of justice. When the
petitioners for whatever reason had not appeared inspite of service of
summons but wanted to put their appearance belatedly, the interest of justice
would have been sub-served by allowing them to put their appearance, may
be by fastening with liability to pay some costs for causing delay. The
approach of the learned Judge while passing the impugned order is pedantic
rather than pragmatic. It is only on the technical reasons that the learned
Judge seems to have refused to exercise the discretion.

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7.There is no material to demonstrate and even the impugned

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order does not specifically mention as to how any prejudice is likely to be
caused to respondent No.1/plaintiff if the petitioners are allowed to appear.

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WP4085-2019

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8. It is in these circumstances, when the dispute pertains to specific

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performance of a contract regarding an immovable property, the petitioners’
request ought to have been considered favourably.

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9. The Writ Petition is allowed. The impugned order is quashed and

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set aside. The learned Civil Judge shall now allow the petitioners to appear
in the suit on their depositing a cost of Rs.5000/- within two weeks from

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today. The Rule is made absolute.

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[MANGESH S. PATIL]

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 JUDGE

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npj/WP4085-2019

Haribhau Narayanrao Nandkhedkar through Lrs Suvarna Haribhau Nandedkar and Others v. Sandeep Balasaheb Walke and Others

Case brief

What is this about?

What did the court decide?

Haribhau Narayanrao Nandkhedkar through Lrs Suvarna Haribhau Nandedkar and Others v. Sandeep Balasaheb Walke and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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