Allowed

Smt. Kumud Sharad Palande v. Ms. Roma Kedar Palande and Ors.

Bombay HC22 Feb 2024WP/13032/2023

Case brief

AI extract

What is this about?

Single Judge allowed writ petition challenging rejection of delay condonation application in rent suit. Court held Supreme Court order on pandemic limitation extended deadline, distinguishing a contrary Delhi commercial court order. Writs issued to quash lower orders and admit written statement.

What did the court decide?

Impugned orders dated 3.3.2022 and 11.8.2023 quashed; Small Causes Court directed to admit petitioner's written statement dated 21.12.21.

Smt. Kumud Sharad Palande Vs Ms. Roma Kedar Palande and… — Landlord and Tenant | Bombay HC (2024)

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KANCHAN Digitally signed byKANCHAN VINOD VINOD MAYEKAR MAYEKAR Date: 2024.03.0117:05:30 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 13032 OF 2023

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Smt. Kumud Sharad Palande

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….. Petitioner

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VERSUS

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Ms. Roma Kedar Palande & Ors. ...Respondents

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Mr. C.D.Nargolkar a/w. Mr.S.R.Nargolkar i/b. Mr.Aumkar Joshi
for the Petitioner.

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Ms.Prachi Tatake for the Respondent Nos. 1 and 2.

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Mr.Waseem Khan for the Respondent No.3.

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CORAM: RAJESH S. PATIL, J.

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 DATE : 22 FEBRUARY, 2024

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P.C. :-

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This writ petition is filed by the original defendant no.2
challenging the judgment and order dated 3 March, 2022 passed
in order below Ex.52 in R.A.D.Suit No.447 of 2021, and has
confirmed by the judgment and order dated 11 August, 2023
passed by the Division Bench of the Court of the Small Causes.

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2. The petitioner herein is the original defendant no.2, against

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whom her daughter-in-law had filed a suit for declaration of
tenancy in respect to the suit premises.

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3.For sake of brevity, the parties are hereinafter referred as
per their nomenclature in Trial Court. Admittedly, the suit
summons was served on the defendant no.2 on 4 May, 2021.
Hence, 30 days period would have come to an end on 3 June,
2021. The defendant no.2 on 21 December, 2021 filed an
application Ex.52 for condoning the delay in filing the written
statement and seeking a permission to take on record her written
statement.

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4.The said application for condonation of delay in filing the
written statement was opposed by the plaintiff. Hence, the Single
Judge of the Court of Small Causes heard both the parties and by
its judgment and order dated 3 March, 2022, rejected the
application Ex.52, which sought condonation of delay in filing
written statement.

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5.Being aggrieved by the rejection of the delay condonation
application, the original defendant no.2 filed Revision before the
Division Bench of the Court of Small Causes. The Division Bench
of the Court of Small Causes thereafter heard both the parties
and by its order dated 11 August, 2023 rejected the Revision
Application No. 119 of 2022.

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6. The present writ petition challenges both the orders passed

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by the Trial Court and the Division Bench of the Small Causes
Court, thereby rejecting the delay condonation application filed
by the original defendant no.2 in filing her written statement.

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7. Mr.C.D.Nargolkar, learned counsel appeared on behalf of the original defendant no.2.

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(i)Mr.Nargolkar submitted that the summons

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was served on the defendant no.2 during the
pandemic period and in the pandemic period,
itself, the defendant no.2 preferred an application

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dated 21 December, 2021 for condoning the delay
in filing the written statement and further sought
permission to take on record the written
statement.

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(ii)Mr. Nargolkar submitted that after the
summons was served on defendant no.2,
immediately thereafter the defendant no.2 had
preferred an application seeking rejection of plaint
under Order 7 Rule 11 of the Code of Civil
Procedure on various grounds as stated in the said
application.

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(iii)Mr. Nargolkar also submitted that after the
summons was served on the defendant no.2, the
plaintiff preferred an application seeking
amendment to the plaint. The said application of
the plaintiff granting her amendment to be carried

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out in the plaint, was ordered on 25 October,

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2021. He further submitted that thereafter, there

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was Diwali Vacation. Hence, on 21 December,
2021, the defendant no.2 preferred an application
to take on record the written statement along with
delay condonation application.

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(iv)So also, according to Mr.Nargolkar , various
proceedings were filed by the defendant no.2 and
as also, by the plaintiff against each other.

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(v)Mr. Nargolkar thereafter submitted that the
writ petition requires to be allowed and the
impugned order passed by the Courts be quashed
and set aside and the written statement filed by
the defendant no.2 be taken on record.

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8.Ms.Prachi Tatate, learned counsel appeared for the original
plaintiff and made her submissions :-

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(i)Ms.Tatate submitted that the defendant no.2
was appearing in the suit after the summons was
served on her. She submitted that after the

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summons was served on 4 May, 2021, the
defendant no.2 appeared through her advocate on
6 May, 2021 and immediately, thereafter, on 7
June, 2021, the defendant no.2 preferred an
application seeking rejection of plaint under Order

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7 Rule 11 of the Code of Civil Procedure.

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(ii)She further submitted that the party who is
well aware about the proceedings being pending
in the Court, and who is filing various applications
could not be granted liberty at a belated stage to
take written statement on record.

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(iii)She submitted that the orders passed in Suo-
motu Writ Petition (Civil) No. 3 of 2020 does not
come to the rescue of such litigant who is well

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aware of the filing of the proceedings.

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(iv)She submitted that even though the
proceedings were filed in the pandemic period, the
defendant no.2 cannot take advantage of the fact
that the Supreme Court in Suo Motu Writ Petition
(Civil) No. 3 of 2020 had extended the period for
the purpose of limitation and filing the
applications/petitions/suits/appeals.

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(v)Ms.Tatake relied upon an Order dated 17
December, 2021 passed by the Single Judge of
Delhi High Court in the matter of HT Media
Limited & Anr. vs. Brainlink International, Inc. &
Anr. passed in CS (Comm) No. 119 of 2020. She
submitted that in this order, HT Media Limited
had submitted that the defendants were fully
aware of the proceedings being filed, they
participated on various dates including in

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mediation and chose not to file the written
statement. Hence, the Single Judge of the Delhi
High Court, did not condone the delay in filing the
written statement. She submitted that the said
order of the Delhi High Court was challenged by
the defendant by way of Special Leave Petition, to
the Supreme Court. She further submitted that the
Supreme Court by its order dated 14 March, 2022
declined to interfere with the order passed by the
Single Judge of the Delhi High Court. She
submitted that the ration of the said order passed
by Delhi High Court, which was confirmed by
Supreme Court, will be applicable to the present
proceedings. Hence, the writ petition should not
be entertained.

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9. I have heard both the sides and I have taken into

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consideration the fact that the present suit arises out of the

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R.A.D. proceedings (suit for declaration of tenancy) under the
Maharashtra Rent Control Act.

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10.Admittedly, the suit summons was served on the defendant
no.2 on 4 May, 2021. Therefore, the period of 30 days for filing
the written statement would have come to an end on 3 June,
2021. There is also no dispute that the original plaintiff preferred
an application for amendment of the plaint on 28 June, 2021 and
the said application was allowed by order dated 23 September,
2021. Thereafter, the amended plaint was served on the
defendant no.2 only on 25 October, 2021. Soon thereafter, the
Court was closed down for Diwali Vacation and on 21 December,
2021, the defendant no.2 preferred an application Ex.52, seeking
condonation of delay, if any, in filing the written statement and
seeking the permission to take on record written statement.

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11.There is no dispute that the service of summons, so also the
application preferred by the defendant no.2 for condonation of

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delay were preferred during the pandemic period. It appears that
the defendant no.2 himself was under a doubt whether there was
any kind of delay in filing the written statement. Supreme Court
in the proceedings of Suo-motu Writ Petition (Civil) No. 3 of
2020 has held that where the limitation period would have
expired during the period between 15 March, 2020 till 14 March,
2021, notwithstanding the actual balance period of limitation
remaining, all persons shall have a limitation period of 90 days
from 1 March, 2022.

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12.Paragraph (3) of the order dated 10 March, 2022 passed in
Suo-motu Writ Petition (Civil) No. 3 of 2020 is reproduced
hereinbelow :-

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(iii)In cases where the limitation would have expired
during the period between 15.03.2020 till 28.02.2022,
notwithstanding the actual balance period of limitation
remaining, all persons shall have a limitation period of 90
days from 01.03.2022. In the event the actual balance
period of limitation remaining, with effect from
01.03.2022 is greater than 90 days, that longer period
shall apply.

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13.According to me, the present proceeding is squarely
covered by the order passed by the Supreme Court in Suo-motu
Writ Petition (Civil) No. 3 of 2020.

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14.The submissions of the original plaintiff as regards ratio
laid down in the order passed by the Single Judge of Delhi High
Court on 17 December, 2021. It is pertinent to note that in the
first place, the said order is passed in a proceeding under the
commercial suit falling under the Commercial Courts Act. A bear
reading of the order shows that it is pertaining to the trade mark
proceedings. Therefore the observations made in the said order
are pursuant to the facts involved in that particular case. Hence,
the Supreme Court while deciding the Special Leave Petition
from the order passed in HT Media Limited (supra) also
mentions that in the facts and circumstances of the said case.
According to me, since the facts involved in the HT Media
Limited (supra) case is completely different from the present
proceeding. The ratio of the said judgment will not be applicable

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to the present proceedings and in any case, the observations

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made by the Judge of the Delhi High Court in the case of HT

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Media Limited (supra) was only an Order and not a Judgment.

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15.Therefore, the order passed by Delhi High Court in case of
HT Media Limited (supra) and further order passed by the
Supreme Court in the said proceedings will not be applicable to
the present proceedings, which does not arise from a commercial
suit.

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16.Hence, Rule is made absolute. Writ petition is allowed in
terms of prayer clauses (a), (b) and (c). The said prayer clauses
(a), (b) and (c) reads as under :-

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(a)This Hon’ble Court be pleased to issue a Writ of
Certiorari, or any appropriate Writ, Order or
Direction under Article 227 of the Constitution of
India and quash and set aside the impugned Order
dt. 3.3.2022 at Exh. G, passed in the RAD Suit No.
447/2021 by the Hon. Small Causes Court,
Mumbai ;

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(b)This Hon’ble Court be pleased to issue a Writ of
Certiorari, or any appropriate Writ, Order or
Direction under Article 227 of the Constitution of
India and quash and set aside the impugned Order
dt. 11.8.2023 at Exh. I passed in the Revision
Application No. 119/2022 by the Hon. Small Causes
Appellate Court, Mumbai ;

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(c) This Hon’ble Court be pleased to direct the Hon.
Small Causes Court, Mumbai, to take the Written
Statement filed by the Petitioner (Defdt. 1) dt.
21.12.21 which was filed on record of R.A.D.Suit No.
447 of 2021.

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17.At this stage, Ms.Prachi Tatake, learned counsel appearing
for the original plaintiff is seeking stay to the execution of this
judgment and order. Mr.Nargolkar has strongly opposed the
same. Hence, the request made Ms.Tatake is rejected.

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[RAJESH S. PATIL, J.]

Smt. Kumud Sharad Palande v. Ms. Roma Kedar Palande and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Kumud Sharad Palande v. Ms. Roma Kedar Palande and Ors.

Case brief

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