-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.9073 of 2007 Prasanna Subhash Sayakhedkar ..Petitioner vs. 1. Sau.Shalini Vishnu Patekar and others ..Respondents Shri C.G.Gavnekar i/b Shri Hiranandani for petitioner. Shri Rahul D.Motkari for respondent no.1. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 11th March, 2008 11th March, 2008 11th March, 2008 P.C. P.C. P.C. 1. This writ petition is directed against the order passed below Exh.113 in Special Civil Suit No.310 of 2003. 2. The application Exh.113 was filed by defendant no.1. In the said application, it was urged that defendant no.1 had earlier filed an application requesting the Trial Court to permit her to file the written statement. But that application was rejected. She has engaged an Advocate but she is permanently residing at Lonawala. The lawyer could not be contacted by her because she was unwell. In the application itself she states that the suit is now at the -2- stage of delivery of judgment. In such circumstances, she has engaged another Advocate and after the proceedings were inspected by her, she realised that the Court has proceeded in the suit even against defendant no.2 exparte. The application points out several irregularities during the course of proceedings and emphasis is that these irregularities cannot take away her right to cross examine the witnesses of the plaintiff and the plaintiff on question of law. Therefore, she prayed that she be allowed to cross examine the plaintiff and his witnesses. This application was granted by the Trial Court on 7th June, 2007. The Trial Court directed that in larger interest of justice, permission to cross examine strictly on law point is granted. Thereafter, the first defendant filed another application (Exh.119). In this application she prayed that the new lawyer has come on record and inspection of the proceedings revealed that original defendant no.2 has filed an affidavit in reply to the application for temporary injunction on 5th February, 2004. However, as defendant no.1 did not file the written statement the order of no written statement was passed against defendant no.1. She states that even she has filed a -3- comprehensive reply in the application for temporary injunction and she now be permitted to adopt it as written statement in the suit. Therefore, she prayed that the order of "No W.S." be quashed and set aside. She reiterated the very same reasons of her illness. This application was filed on 6th August, 2007 and the same was opposed by the original plaintiff/petitioner before me. It was pointed out that the suit was filed in the year 2003, the suit summons was served in 2003 itself and the defendant has appeared through Advocate. Defendant Nos. 1 and 3 have replied to the application for temporary injunction. However, they did not file any written statement and, therefore, no written statement order has been passed. Thus, no written statement order becomes final. Thereafter, it was pointed out that conduct of the first respondent is such that she has delayed the proceedings. The first respondent has changed Advocate from time to time. If her health did not permit her to attend the Court she could have engaged the power of attorney. The earlier order granted her liberty to cross examine the plaintiff but even that order has not been challenged. In such circumstances, if the application of the -4- first respondent is allowed grave loss and prejudice would be caused. 3. The Trial Court in para 2 of the impugned order noticed all these facts but the Court allowed this application on the spacious plea that defence of defendant no.1 is already disclosed and now by way of purshis defendant no.1 is adopting the same defence as her written statement. The learned Judge is aware that the suit proceeded without the written statement. Yet, permission to adopt the say already given to Exh.5 has been granted. The learned Judge has lost sight of the fact that the suit has progressed much further. Examination in chief on affidavit is placed on record. The documents are also exhibited and the matter has reached the stage of Judgment. Despite this following the judgment of this Court reported in 2007(3) Bom.C.R.83 (Ravisingh Charansingh Parmar Vs. Amreshwar Sambhappa Kushmakar) the application has been allowed. 4. I have heard the learned Counsel appearing for the parties. The contesting respondent is respondent no.1. The order has been supported -5- and defended by her counsel on the ground that order VIII Rule 9 and order VIII Rule 10 of Code of Civil Procedure confer enough discretion in the Trial Court to pass the impugned order. It is contended that the matter has not progressed in as much as the suit proceeded exparte. Therefore, now all that would happen is that the written statement would be the same as the reply to Exh.5 application and, therefore, no prejudice is likely to be caused. 5. The petitioner on the other hand has pointed out that on 18th July, 2006 the plaintiff/petitioner was granted permission to lead evidence. By purshis filed on 2nd February, 2007, the plaintiff has closed his case. The application was filed on 5th March, 2007 by respondent no.1 (Original defendant no.1) requesting for permission to cross examine the petitioner and the witness on the point of law as she has failed to file the written statement. That application was allowed on 7th July, 2007. Thus, at no stage did the first respondent express any desire to file any written statement and she accepted all orders which were adverse to her. Those have gained finality and could not have been ignored by the -6- Court below. 6. After perusing the petition and annexures thereto, so also the impugned order, I am of the opinion that the Court below has exercised discretion contrary to law and arbitrarily. The Court below was fully aware of the order dated 17th August, 2004 which directs that the matter will proceed without the written statement. Thereafter it was fully aware of its order dated 18th November, 2004 rejecting the application preferred by the first respondent praying for time to file the written statement. Thereafter the suit has proceeded exparte and is at the stage of judgment. The decision of this Court relied upon is distinguishable on facts. There, the matter had not concluded and, therefore, this Court granted permission by setting aside the order of the Trial Court. It is not as if this Court lays down the principle that defendant to a suit can at any stage come before the Court and apply for adopting the reply to Exh.5/interim injunction application as a written statement. If such application is made in a suit to which amended Code of Civil Procedure applies, then, the Trial Court is obliged to apply its mind and exercise necessary -7- discretion bearing in mind the facts of each individual case. There is no absolute proposition and general rule laid down. The discretion has also to be exercised judiciaously. An unjust or arbitrary exercise of discretion is capable of being interfered with by this Court under Article 227 of the Constitution of India, more so, when it has resulted in miscarriage of justice. Here, looking into the conduct of the first respondent, when her only desire was to prolong and delay the proceedings and she did not avail of any opportunity granted by the Trial Court to file the written statement or otherwise participate in the trial, there was no question of allowing her request, at this belated stage of adopting either the affidavit in reply to the interim injunction application as her written statement. That has made a complete mockery of the provisions in the amended Code of Civil Procedure which ensure expeditious and speedy disposal of civil cases. The discretion in the Court which is conferred by order 8 Rule 9 and Order 8 Rule 10 can by no means in the peculiar facts of this case override order 8 rule 1 of the Code of Civil Procedure as amended. In the peculiar facts of this case, the decision in the -8- case of Ravisingh will not apply. 7. For identical reasons even other decision brought to my notice by Shri Motkari reported in AIR 1999 Bombay 51 (Vimalkumar Nathmal Goenka Vs. Vinod Kumar Nathmal Goenka and others) will not apply. The decision was rendered in the light of unamended provisions of the Code of Civil Procedure and on facts it was not observed that the party was negligent. Here, the party was totally negligent in the conduct of the proceedings. She did not show any urgency nor took steps to defend the suit. Even when liberty to cross examine were granted, I am not sure whether the same has been availed of. Further applications are filed with a view to avoid a judgment being delivered in the suit. In such circumstances, the order under challenge cannot be sustained. The discretion has been exercised arbitrarily, injudiciously and has resulted in serious prejudice to the petitioner/plaintiff. In such circumstances, the order under challenge is quashed and set aside. The suit now to proceed at the stage at which the learned Judge has indicated the same to be pending. However, in the peculiar facts of this case, there will be no order as to -9- costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)