Dismissed

Eversmile Construction Co. Pvt. Ltd. and Anr. v. Manek Gajanan Koli and Ors.

Bombay HC19 Dec 2022WP/1461/2019

Case brief

AI extract

What is this about?

This judgment dismissed a writ petition challenging an order discarding a written statement filed out of time after amendment of the plaint. The High Court held that the petitioner did not disclose the omission in earlier records and disapprovingly noted that a party cannot claim the benefit of its own wrong. However, liberty was granted to file an application in the Trial Court to file an exhaust

What did the court decide?

Liberty granted to file appropriate application in Trial Court for leave to file exhaustive written statement and condonation of delay.

Eversmile Construction Co. Pvt. Ltd. and Anr… — Civil Procedure and Limitation | Bombay HC (2022)

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2. CIVIL WP 1461-19.doc

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Ajay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 1461 OF 2019

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Eversmile Construction Co Pvt Ltd & Anr..Petitioners
Versus

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Manek Gajanan Koli & Ors..Respondents

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Mr. D.V. Deokar and Mr. D. Parikh i/by Parimal K. Shroff & Co. for Petitioners

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Mr. Mangesh S. Parte for Respondent Nos. 1 and 2

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Mr. Deepak Chitnis i/by Mr. Deepak Chitnis-Chiprikar for Respondent Nos. 4 to 6

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CORAM:MILIND N. JADHAV, J.
DATE:DECEMBER 19, 2022

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P.C.:

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1. Heard Mr. Deokar, learned Advocate for Petitioners; Mr.

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Parte, learned Advocate for Respondent Nos. 1 and 2 and Mr. Chitnis,
learned Advocate for Respondent Nos.4 to 6.

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2. The petition is filed for challenging order dated 17.12.2018 passed in Notice of Motion No.4363 of 2018 in Suit No.8626 of 1998. Perusal of the impugned order reveals that Notice of Motion was filed by Plaintiffs for discarding the amended written the statement of Defendant No.2 which was beyond the scope and extent of the amendment carried out to the plaint. Plaintiff contended that Defendant No.2 failed to file its written statement and only after Plaintiff filed their evidence and documents, Defendant No.2 filed their say to the documents regarding admission of denial. However, in

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2. CIVIL WP 1461-19.doc

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the meanwhile, Defendant No.4 expired and his legal heirs i.e.
Defendant Nos.4/a to 4/b were brought on record and accordingly the
plaint was amended. Plaintiff contended that after amendment was
carried out, all defendant were required to file their written statement
to the extent of the amendment, but Defendant No.2 filed an
exhaustive and comprehensive written statement. It is contended by
the Petitioner i.e. Defendant No.2 that the learned Trial Court had
accepted the pursis of Defendant Nos.1 and 2 to take the additional
written statement of Defendant No.1 and written statement of
Defendant No.2 on record by order dated 12.6.2018. Hence, since that
order was not challenged the Notice of Motion for discarding the
written statement of Defendant No.2 was not maintainable.

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3. Perusal of record before the learned Trail Court reveals that the case of the Petitioner is comprehensively considered by the learned Court while passing the impugned order. It is seen that in the pursis filed by Defendant Nos.1 and 2, it was never disclosed by them that previously Defendant No.2 did not file its written statement. That apart, Defendant No.2 did not seek leave of the Trial Court for filing the written statement beyond the scope of the amended plaint. This suppression by Defendant No.2 i.e Petitioner herein is clearly evident and is writ large on the face of record. Defendant No.2 inadvertently has taken advantage of its own wrong in not filing its earlier written

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2. CIVIL WP 1461-19.doc

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statement and treating the suit plaint as a fresh case. In that view of
the matter, the reasoning and speaking order given by the learned
Trial Court is apt and does not call for any interference.

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4. The impugned order is sustained.

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5. At the profuse request of Mr. Deokar liberty is granted to take out appropriate Application, if so permissible, in accordance with law for seeking leave of the Trail Court to file exhaustive written statement along with Application for condonation of delay. If any such Application is made, the same shall be decided by the learned Trial Court on its own merits and strictly in accordance with law.

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6. With the above directions, Writ Petition is disposed.

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[ MILIND N. JADHAV, J. ]

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Digitally signed by AJAY AJAY TRAMBAK TRAMBAK UGALMUGALE UGALMUGALE Date: 2022.12.24 13:40:33 +0530

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Eversmile Construction Co. Pvt. Ltd. and Anr. v. Manek Gajanan Koli and Ors.

Case brief

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Eversmile Construction Co. Pvt. Ltd. and Anr. v. Manek Gajanan Koli and Ors.

Case brief

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