Allowed

Mahadeorao Hanumant Suryawanshi and Ors. v. Amit Mahadeorao Suryavanshi

Bombay HC16 Mar 2022WP/289/2013

Case brief

AI extract

What is this about?

In a Writ Petition challenging a 'No Written Statement' order in a partition suit stayed for nine years, the Court set aside the impugned order and the earlier 'No W.S.' order, granting the petitioners one more chance to file their written statement within two weeks subject to a cost deposit.

What did the court decide?

Impugned order and 'No W.S.' order quashed/set aside. Petitioners allowed two weeks to file written statement and deposit Rs.25,000/- cost.

Mahadeorao Hanumant Suryawanshi and Ors. Vs Amit… — Service and Employment | Bombay HC (2022)

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(4)-WP-289-13.doc .

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Digitally signed by BALAJI BALAJIGOVINDRAO GOVINDRAOPANCHAL PANCHAL Date: 2022.03.21 16:42:08 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.289 OF 2013

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Mahadeorao Hanumant Suryawanshi and Ors. ..Petitioners
Versus
Amit Mahadeorao Suryawanshi ..Respondent

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Mr. Ashutosh M. Kulkarni i/by Akshay P. Shinde, for the Petitioners.
Mr. S. N. Chandrachood, for the Respondent.

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CORAM : NITIN W. SAMBRE, J.

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 DATE : 16th MARCH, 2022

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P.C.

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1.This petition is by the defendants to Special Civil Suit
No.2220 of 2011 which is for partition and separate possession.

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2. Petitioner No.1/defendant No.1 is father of the plaintiff.

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3. After the suit summons was received by the petitioners,
it is claimed that petitioners entered their appearance on 19th
December, 2011 and the application for adjournment to place on
record written statement being Exhs.15, 17 and 18 were allowed.
Ultimately, on 17th March, 2012, “No W. S.” order was passed. It is
claimed that application Exh.22 came to be moved for setting aside
“No W. S.” order. The 90 days period claimed to have expired on
18th March, 2022 for filing written statement. Vide order impugned
dated 26th April, 2012, said prayer is rejected by the Court below.

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BGP. 1 o f 4

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(4)-WP-289-13.doc .

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As such, this petition.

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4. The submissions are, considering the status of the
parties to the suit which is for partition, each of them have common
interest in the suit property, the Court below ought to have
permitted the petitioners to place on record their written statement
which was delayed by ten days. As such, delay was unintentional
and bonafide.

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5. Mr. Ashutosh Kulkarni, learned counsel for the
petitioners would urge that the petitioners can be put to certain
reasonable conditions. Subject to compliance, “No W. S.” order
passed on 17th March, 2022 needs to be set aside by permitting the
petitioners to place on record written statement. According to him,
if chance is given written statement which is ready can be tendered
forthwith.

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6. Mr. S. N. Chandrachood, learned counsel appearing for
the respondent/plaintiff would oppose the aforesaid prayer. He
would invite attention of this Court to Exh.22, wherein “No W. S.’
order sought to be set aside was moved at belated stage. According
to him, since the said application sans any reasons, the order
impugned came to be passed.

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7. He would further urge that considering the provisions of
Order VIII of the CPC, it is necessary to be appreciated that

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BGP. 2 o f 4

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(4)-WP-289-13.doc .

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mandatory period of filing of written statement cannot be extended
merely for asking. Drawing support from the judgment of this Court
in the matter of Jenty Vs. Rajshree reported in 2003(4) Mh.L.J.
1034, he would urge that since no sufficient reasons are disclosed
by the petitioners in support of prayer for setting aside of “No W. S.”
order and failure of due diligence, the petition is liable to be
dismissed.

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8. Considered rival submissions.

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9. The suit in question is for partition and separate
possession which is stayed since for last almost nine years. In view
of interim relief, the suit proceedings are delayed for considerable
period.

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10. As a consequence of above, trial in the suit is yet to
commence. This Court is required to be sensitive to the fact that in
a suit for partition, status of the parties is that of having interest in
common. In the aforesaid background, though Mr. S. N.
Chandrachood, learned counsel appearing for the respondent is
justified in claiming that there was unexplained delay of almost ten
days in preferring written statement after expiry of period of ninety
days, in the interest of justice, this Court is of the opinion that in the
interest of justice one more chance is required to be given to the
petitioners/defendants to place on record their written statement.

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BGP. 3 o f 4

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(4)-WP-289-13.doc .

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11. In the aforesaid background, order impugned dated 26th
April, 2012 is hereby quashed and set aside.

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12. The order dated 17th March, 2012 whereby the “No W.
S.” order was passed is also set aside.

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13. The petitioners shall tender their written statement
along with cost of Rs.25,000/- within a period of two weeks from
today before the learned Trial Court. If the time period as
mentioned herein-above is not adhered to for the deposit of cost
with written statement, the Trial Court shall proceed with the suit
on its own merits and without written statement of the petitioners.

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14. Needless to clarify that respondent/plaintiff shall be
entitled to withdraw the cost.

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15. The petition as such stands disposed of in above terms.

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[NITIN W. SAMBRE, J.]

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4 o f 4

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BGP.

Mahadeorao Hanumant Suryawanshi and Ors. v. Amit Mahadeorao Suryavanshi

Case brief

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What did the court decide?

Mahadeorao Hanumant Suryawanshi and Ors. v. Amit Mahadeorao Suryavanshi

Case brief

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What did the court decide?

What the court decided

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