Allowed

Mrs. Shalini Mahesh Deshpande and Anr. v. Mr. Anant Pandurang Chavan

Bombay HC17 Jan 2024WP/10065/2023

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging a trial court order that dismissed a notice of motion seeking condonation of a six-year delay in filing a written statement. The Court quashed the impugned order, noting that the delay period should have been reduced by excluding the Covid-19 lockdown period.

What did the court decide?

Impugned order dated 02.05.2023 quashed; written statement to be taken on record upon payment of Rs.25,000 costs; plea for disposal of suit within one year.

Mrs. Shalini Mahesh Deshpande and Anr. Vs Mr… — Civil Procedure and Limitation | Bombay HC (2024)

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52.wp.10065.23.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. 10065 OF 2023

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Mrs. Shalini Mahesh Deshpande and Anr...Petitioners
Versus

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Mr. Anant Pandurang Chavan..Respondent

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Ms. Prema Gandhi a/w. Anish Shahapurkar i/by Ms. Sayali Sanjay Sawant, Advocates for Petitioners.

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Ms. Vishaki Bhatia, Advocate for Respondent.

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CORAM:MILIND N. JADHAV, J.
DATE:JANUARY 17, 2024.

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P.C.:

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1. Heard Ms. Gandhi, learned Advocate for Petitioners and Ms.

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Bhatia, learned Advocate for Respondent.

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2. This Writ Petition takes exception to the order dated 02.05.2023 passed by the learned Trial Court dismissing Notice of Motion No.1550 of 2023 by which the Defendants had sought condonation of delay of 2239 days i.e. approximately 6 years for seeking leave to file the written statement on the grounds stated in the Notice of Motion and which ought to have been noted by the learned Trial Court also. On 04.01.2024, I heard the Petitioners and following order was passed:-

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“ 1. Not on Board. Mentioned. Taken on Board.

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2. Writ Petition takes exception to the Order dated 2 May

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52.wp.10065.23.doc

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2023 passed by the learned trial Court dismissing Notice Motion
No.1550 of 2023 filed by the defendants seeking condonation of
delay of 2239 days i.e. approximately six years on various
grounds. Grounds are enumerated in the Order itself.

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3. One of the principal ground is negligence of Advocate on
record. But it is seen that in 2009, written statement infact was
filed without seeking condonation of delay in filing the same
and thereafter presumably no steps were taken. When I asked
the Advocate appearing for Petitioners as to whether the suo
moto period during Covid-19 has been excluded from the six
years delay, she would submit that the same has not been
excluded. Prima facie, it is seen that the reasons for the delay
which have been averred cannot be presumed as intentional. In
so far as the issue of granting waiver of the period of delay
during Covid-19 pandemic is concerned, under the extant
orders of the Supreme Court passed in Suo Moto Petitions, the
said period necessarily would be excluded if so applied. In the
present case, it is seen that the learned trial Court has expressly
refused to apply the said Covid period for seeking condonation
of delay as seen from un-numbered paragraph no.2 of the Order
dated 2 May 2023. If that be the case, the period of delay
undoubtedly would get reduced to less than 4 years.

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4. In view of the above, an arguable case is made out by the
learned Advocate for the Petitioners for issuance of notice.
Hence, issue notice to the Respondent returnable on 17 January
2024. In addition to Court’s notice, Petitioners are permitted to
serve the Respondent by any legally permissible mode of service
and file appropriate affidavit of service with tangible proof of
having served him. Such affidavit shall be filed on or before the
next date.

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5. Respondent is directed to remain present either through
himself or through Advocate on the next adjourned date. Copy
of this Petition and this order shall be served on Respondent by
the learned Advocate for the Petitioners to inform him about
the next date of hearing.

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6. Stand over to 17 January 2024.”

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3. Today, Ms. Bhatia, learned Advocate appears for the

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contesting Respondent i.e. the Plaintiff in the Trial Court and would
contend that the timeline in the present case would suggest gross and
inordinate, rather unexplained delay on the part of the Petitioner in
not filing the written statement and failing to appear on several

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52.wp.10065.23.doc

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occasions. She has drawn my attention to the Roznama appended at
Exhibit “B” to the present Writ Petition to contend that in 2017 as well
as 2019 several opportunities were given by the learned Trial Court to
the Petitioners despite which the written statement was not filed.
Affidavit-in-Reply to oppose the Writ Petition has also been filed by the
Respondents. She has drawn my attention to the said Affidavit. She
would therefore contend that the present Writ Petition does not
deserve be allowed and the impugned order dated 02.05.2023 be
upheld. I have perused the impugned order and the pleadings in the
present case and heard the learned Advocates appearing for the
respective parties.

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4. In view of the reasons noted in the order dated 04.01.2024 as also the fact that the said reasons have been considered albeit differently by the learned Trial Court, I am inclined to allow the present Writ Petition and set aside the impugned order dated 02.05.2023 in the interest of justice but subject to payment of costs of Rs.25,000/- to the Plaintiff i.e. Respondent in the present Writ Petition. The costs are awarded especially keeping in mind the timeline in the proceedings before the learned Trial Court clearly exhibit the delay despite several opportunities. From Exhibit “B” the same is clearly seen. The costs shall be paid to the Respondent by the Petitioners within a period of two weeks from today positively. Statement of the learned Advocate for the Petitioners is recorded by

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52.wp.10065.23.doc

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the Court as an undertaking given to the Court.

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5. In view of the above, the impugned order dated 02.05.2023 stands quashed and set aside.

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6. The written statement shall be taken on record of the Suit proceedings by the learned Trial Court within a period of one week from the date of payment of costs to the Respondent after ensuring that the said costs have been paid.

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7. At the joint request of both the learned Advocates, considering the nature of the Suit proceedings and the fact that it has remained pending since 2016, the learned Trial Court is requested by this Court to dispose of the Suit proceedings as expeditiously as possible and in any event preferably within a period of one year from today.

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

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 [ MILIND N. JADHAV, J. ]

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Ajay

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Digitally signed by AJAY AJAY TRAMBAK TRAMBAK UGALMUGALE UGALMUGALE Date: 2024.01.17 19:52:06 +0530

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Mrs. Shalini Mahesh Deshpande and Anr. v. Mr. Anant Pandurang Chavan

Case brief

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Mrs. Shalini Mahesh Deshpande and Anr. v. Mr. Anant Pandurang Chavan

Case brief

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