Allowed

Radhakishan Alias Kisan Kanbarao Mhaske and Others v. Chaturabai Bhiwaji Jagtap

Bombay HC9 Feb 2022WP/190/2022

Case brief

AI extract

What is this about?

This writ petition challenged trial court orders denying the filing of a written statement due to delayed condonation of costs. The High Court quashed the orders, held that fairness required giving defendants a chance to contest on merits, and directed acceptance of the written statement upon payment of higher costs.

What did the court decide?

Petition allowed; impugned orders quashed; written statement accepted upon payment of Rs. 5,000.

Radhakishan Alias Kisan Kanbarao Mhaske and… — Civil Procedure and Limitation | Bombay HC (2022)

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1 934-WP-190-22.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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WRIT PETITION NO.190 OF 2022

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RADHAKISHAN ALIAS KISAN KANBARAO MHASKE AND OTHERS
VERSUS

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SOW. CHATURABAI BHIWAJI JAGTAP

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Advocate for Petitioners : Mr. Vishal A. Bagal
Advocate for Respondent : Mr. K. S. Sarda

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CORAM : NITIN B. SURYAWANSHI, J.

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DATE : 09th FEBRUARY, 2022

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PER COURT :

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1.This petition takes exception to the orders dated
17-03-2021 and 20-11-2021, passed by the learned Civil Judge, Senior
Division, Nanded, below Exhibit-13 in Special Civil Suit No.11/2020.

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2.By the impugned order dated 17-03-2021 the trial Court
permitted defendants Nos. 1 to 4 to file their written statement after
delay of three months and six days, by imposing cost of Rs.1500/-, to be
paid on or before the next date. It is observed in the said order that, if
the defendants fail to pay the costs till next date, this order will be
automatically vacated. It appears from the record that defendants failed
to pay the costs. Therefore, by order dated 20-11-2021, in view of the
order dated 17-03-2021 passed below Exhibit-13, the trial Court
directed the suit to proceed without written statement of respondent

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2 934-WP-190-22.odt

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Nos. 1 to 4.

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3.Heard the rival submissions of the learned advocate for
petitioners and the learned advocate for respondent.

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4.It is the contention of the learned advocate for petitioners –
defendants that during the lock-down petitioners could not file written
statement within stipulated time. Hence, they filed application Exhibit-
13. Taking into consideration the exceptional circumstances which
prevented the petitioners to file written statement in stipulated time, the
trial Court ought to have accepted the written statement filed by the
petitioners – defendants, by condoning the delay. The learned advocate
for petitioners further states that, as per his instructions, the learned
advocate representing the petitioners – defendants in the trial Court was
not aware of this order dated 17-03-2021. Therefore, the costs could not
be deposited and there was no further date given.

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5.The learned advocate for respondent strenuously opposed
prayer of the petitioners contending that it was the duty of the learned
advocate for defendants to peruse the order passed on 17-03-2021.
According to him, the defendants ought to have filed the written
statement within stipulate time.

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3 934-WP-190-22.odt

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6.It is not in dispute that the written statement was not filed
within stipulated time, which was during the lock-down period.
Considering the same, the trial Court allowed the application by
imposing cost of Rs.1500/- on the defendants. However, the defendants
have failed to deposit the costs. Merely because the cost is not deposited
the trial Court was not justified in directing to proceed the suit without
written statement of defendants. In the interest of justice, fair
opportunity needs to be given to the defendants to contest the suit on
merits. In that view of the matter, the impugned orders passed by the
trial Court cannot sustain. However, taking into consideration the fact
that the defendants have failed to deposit the costs within stipulated
time, it is necessary to impose costs on the defendants for non
compliance of order dated 17-03-2021. In the result, following order:

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ORDER

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(I) Writ petition is allowed in terms of prayer clause ‘C’.

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(II) The impugned orders dated 17-03-2021 and 20-11-2021 passed by the learned Civil Judge, Senior Division, Nanded, below Exhibit-13 in Special Civil Suit No.11/2020, are quashed and set aside.

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4 934-WP-190-22.odt

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(III) Written statement of the defendants be accepted on

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payment of cost of Rs.5,000/- (Rupees Five Thousand Only)

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by the defendants to the plaintiff in the trial Court.

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(IV)With these directions, the writ petition is disposed off.

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 (NITIN B. SURYAWANSHI, J.)

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SVH

Radhakishan Alias Kisan Kanbarao Mhaske and Others v. Chaturabai Bhiwaji Jagtap

Case brief

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What did the court decide?

Radhakishan Alias Kisan Kanbarao Mhaske and Others v. Chaturabai Bhiwaji Jagtap

Case brief

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What did the court decide?

What the court decided

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