Anshul S/O Shrikant Patil (Wankhade) and Others Vs Sau. Kanchan W/O. Ravi Sable — Bombay HC (2025) — LawSathi Research

Anshul S/O Shrikant Patil (Wankhade) and Others Vs Sau. Kanchan W/O. Ravi Sable — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Order below Exhibit-33 confirmed; order below Exhibit-35 set aside and the application for permission to cross-examine the plaintiff allowed, subject to payment of Rs. 5000/- costs to the plaintiff by the next date of hearing before the trial Court, the trial Court to ensure payment before cross-examination.

Issue for consideration

Whether the order of the Court below rejecting the petitioners' application for permission to file say (order below Exhibit-33) in the Order 39 Rule 2(a) proceedings (RMJC No.259/2021) should be interfered with, given their unexplained failure to appear and file a reply after being served and appearing on 12-04-2022. +1 more

Court's answer

Despite service and appearance on 12-04-2022, the petitioners neither attended nor filed a reply, and the application disclosed no reason, much less a satisfactory reason, for the default; their conduct was a calculated act. For want of any satisfactory explanation for not filing the reply, the order of the Court below rejecting the application (Exhibit-33) cannot be interfered with and stands confirmed.

Ratio / Principle

Subject to legal restrictions, it is open to a party to cross-examine the other side even without filing any written statement; the Exhibit-35 application was therefore not belated. Taking into account the overall conduct of the petitioners, the order below Exhibit-35 is set aside and the application is allowed subject to payment of Rs. 5000/- as costs by the next date of hearing, the trial Court to ensure the costs are paid to the plaintiff before cross-examination.

Detailed headnote1 paragraphs

Bombay High Court, Nagpur Bench (R.M. Joshi, J.), 20-06-2025, Writ Petition No.2682/2024 - Anshul and others v. Sau. Kanchan. The petition challenged trial-court orders in RMJC No.259/2021, a proceeding under Order 39 Rule 2(a) for alleged breach (entry on the suit property on 19-10-2021) of the interim injunction granted in Special Civil Suit No.34/2021. Although the petitioners were served and caused appearance on 12-04-2022, they neither attended nor filed a say; when the matter was kept for judgment on 24-04-2023 they sought leave to file a say (rejected 04-08-2023, order below Exhibit-33) and then leave to cross-examine the plaintiff (rejected, order below Exhibit-35 dated 13-02-2024). Held: (i) for want of any satisfactory explanation for not filing the reply, the rejection of the Exhibit-33 application cannot be interfered with - the default was a calculated act; (ii) however, subject to legal restrictions a party may cross-examine the other side even without filing a written statement, so the Exhibit-35 application was not belated; its rejection was set aside and the application allowed subject to payment of Rs. 5000/- as costs to the plaintiff by the next hearing date, with the trial Court to ensure payment before cross-examination. Petition partly allowed.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

Writ Petition No.2682/2024 Anshul and others V Sau. Kanchan

Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders

- - - - Mr. S.S. Shingane, Adv for petitioner. Mr. Abhay Sambre, Advocate for respondent.

CORAM : R.M. Joshi, J. DATE : 20-06-2025.

This petition takes exception to the orders passed below Exhibit-33 dated 04-08-2023 and order below Exhibit-35 dated 13-02-2024. There is no dispute about the fact that the respondent is plaintiff in Special Civil Suit No.34/2021. Plaintiff had sought interim injunction against the sole defendant i.e petitioner no.1 herein restraining him from causing interference in the possession of the plaintiff over the suit property.

Since the defendant/plaintiff no.1 and other petitioners entered in the suit property on 19-10-2021, according to the plaintiff there was breach of the injunction and hence proceedings under Order 39 Rule 2(a) came to be initiated being RMJC No.259/2021. Notice was issued to the non-applicant therein, returnable on 12-04-2022. Non-applicant caused appearance in the proceedings through Advocate. Inspite of

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causing of the said appearance, no say was filed to the application and hence the application proceeded without say of the nonapplicant. Thereafter, evidence was led by the respondent herein on 12-12-2022. Since none appeared for the non-applicant therein, order came to be passed for no cross examination of plaintiff. When the said proceeding was kept for judgment on 24-04-2023, the non-applicant moved an application before the court on 24-04-2023 to take up the matter on board and moved application for permission to file say. Say was filed on same day (exhibit-33). This application came to be rejected by the Court on 04-08-2023. After rejection of the said application another application was moved on the same day seeking permission to cross examine the plaintiff. Since both applications are rejected present petition came to be filed.

Learned Counsel for the petitioners submits that except for petitioner no.1 the other petitioners were not party defendant to the original suit and hence in any case there say was necessary to the application. It is his submission that no prejudice would cause to the other aside if the permission is granted to the petitioner to file say and to oppose application on merits. Insofar

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as the rejection of application exhibit-45 is concerned it is his submission that even without filing of reply, it would be open for the petitioner to cross examine the plaintiff and witnesses. Thus, it is his argument that interest of justice requires interference in both the orders.

Learned Counsel for the respondent/original plaintiff opposed the petition on the ground that conduct of the petitioners disentitles them from seeking any relief from this Court. He drew attention of the Court the fact that though appearance was caused on 12-04-2022 before the Court below, the petitioners have not bothered to appear before the court to file reply or to cross examine the witness. It is his submission that the malafide intention of the petitioners can be gathered from the fact that when the matter was fixed on 24-04-2023, four days before petitioner took proceeding on board before trial Court and application came to be filed seeking leave to file reply. This according to him indicates that the petitioners were fully aware of the proceedings and waited calculatively till the matter is kept for judgment. It is his submission that whole intention of the

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petitioner is apparent that they were interested in delaying the matter on one or the other pretext.

There is no dispute about the fact that the petitioners were served with the notice of the proceedings and caused their appearance on 12-04-2022. In order enable the petitioners to seek order of setting aside no say order, it was obligatory on the part of the petitioner to show satisfactory reasons for not appearing before the Court and not filing of reply. Perusal of the application does not indicate any reason much less satisfactory reason. The facts as appeared from the record indicate that there is substance in the contention of learned Counsel for the respondent that it was a calculated act on the part of the petitioner not to appear before the trial Court. In such circumstances, for want of any satisfactory explanation for not filing reply, the order passed by the Court below of rejecting the application exhibit-33 cannot be interfered with.

It is pertinent to note that the application was moved by the petitioner for filing reply and when same was rejected, the petitioner has attempted to make an application for cross examination of the witnesses. Needless to say that subject to the

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legal restrictions it is open for the party to cross examine the other side even without filing any written statement. Thus it cannot be said that application Exhibit 35 was filed belatedly and hence it does not be allowed. However taking into consideration the overall conduct of the petitioner, for the purpose of setting aside the said order passed below Exhibit-35 appropriate needs to be imposed. In the facts and circumstances amount of cost is determined at Rs. 5000/-. Costs be paid with the next date of hearing before the trial Court. Petition stands partly allowed. Impugned order passed below Exhibit-33 is confirmed. Order

below Exhibit-35 stands set aside. Apparition Exhibit-35 is allowed, subject to above condition.

Payment of costs being pre-condition, the trial Court

to ensure that the costs is already paid to the plaintiff before cross

examination

( R.M. Joshi, J. )

Deshmukh

Procedural history

How this case reached the court

AI extract

Order under challenge
Rejection by the Court below of the petitioners' application for permission to file say (order below Exhibit-33) and rejection of the application for permission to cross-examine the plaintiff (order below Exhibit-35), in RMJC No.259/2021.¶8
Trial Court / Court below (RMJC No.259/2021, arising out of Special Civil Suit No.34/2021) · 04-08-2023 (order below Exhibit-33); 13-02-2024 (order below Exhibit-35)
Prior proceeding
Respondent instituted Special Civil Suit No.34/2021 as plaintiff, seeking interim injunction against the sole defendant (petitioner no.1) restraining interference with her possession over the suit property.¶8
Prior proceeding
On 19-10-2021 the defendant/petitioner no.1 and other petitioners entered the suit property, which the plaintiff alleged was a breach of the injunction.¶9
Prior proceeding
Proceedings under Order 39 Rule 2(a) were initiated as RMJC No.259/2021; notice was issued to the non-applicant returnable on 12-04-2022; the non-applicant caused appearance through an Advocate, but no say was filed and the application proceeded without say.¶9
Prior proceeding
The respondent led evidence on 12-12-2022; none appeared for the non-applicant, and an order came to be passed for no cross examination of the plaintiff.¶11
Prior proceeding
When the proceeding was kept for judgment on 24-04-2023, the non-applicant moved to take the matter on board and for permission to file say; say was filed the same day (exhibit-33); the application was rejected by the Court on 04-08-2023.¶11
Prior proceeding
After the rejection on 04-08-2023, another application was moved the same day seeking permission to cross-examine the plaintiff; since both applications were rejected, the present petition was filed.¶11
Prior proceeding
It was undisputed that the petitioners were served with notice of the RMJC proceedings and caused their appearance on 12-04-2022, but thereafter neither appeared nor filed a reply.¶18