1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2391 OF 2007 Khandu S/o Jalbaji Wade } Age : 60 Years, Occ. : Business, } R/o : Old Mondha, Bhagatsingh Road, } Nanded, Dist. Nanded. } .... PETITIONER V E R S U S 1. Shakuntalabai W/o Purbhaji Wade } Age : Major, Occ. : Labour } R/o : Sahebsing Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } 2. Manjula D/o Purbhaji Wade } Age : Major, Occ. : Household, } R/o : Sahebsing Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } 3. Jamunabai D/o Purbhaji Wade } Age : 13 Yrs., Occ. : Education, } R/o : Sahebsing Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } 4. Chitra D/o Purbhaji Wade } Age : 13 Yrs., Occ. : Education, } R/o : Sahebsing Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } 2 5. Kishan S/o Jalbaji Wade } Age : 50 Years, Occ. : Labour, } R/o : Old Mondha, Bhagatsingh } Road, Nanded, Tq. & Dist. Nanded. } 6. Rukhminibai W/o Jivanrao Nageshi } Age : Major, Occ. Household, } R/o : Venkatesh Nagar, } Nanded, Tq. & Dist. Nanded. } 7. Radhabai D/o Rajeshwar Yalgandwar} Age : Major, Occ. Household, } R/o : Venkatesh Nagar, } Nanded, Tq. & Dist. Nanded. } 8. Tulsibai W/o Baburao Padmgirwar} Age : Major, Occ. Household, } R/o : Datta Nagar, Nanded. } 9. Shanta bai W/o Dasharath Pendharkar Age : Major, Occ. Household, } R/o : Burud Galli, A khada Balapur } Tq. Kalamnoori, Dist. Hingoli. } 10. Shobhabai W/o Laxman Jargewar} Age : Major, Occ. Household, } R/o : Venkatesh Nagar, } Nanded, Tq. & Dist. Nanded. } 11. Shivraj S/o Purbhaji Wade } Age : Major, Occ. Labour, } R/o : Sahebsingh Colony, } Gurudwara Gate No. 3, Nanded. } 12. Shivanand S/o Purbhaji Wade } Age : Major, Occ. Labour, } R/o : Sahebsingh Colony, } Gurudwara Gate No. 3, Nanded. } 3 13. Sau.Dropadabai W/o Laxmanrao } Gainewar, Age : Major, Occ. } Household, R/o : Near Municipal } Council Office, Ghatangi, } Dist. Yavatmal } 14. Sachin Kirana Stores } Through its Proprietor } Shri. Rajeshwar Kondawar } situated at Bhagatsingh road, } Old Mondha, Nanded. } 15. Shantadevi W/o Badrinarayan Dhoot } Age : 60 Years, , Occ. Household, } R/o : Sarafa, Nanded } 16. Prabhakar S/o Shankarrao Mahamune Age : Major, Occ. Business, } R/o : Devidas Complex, } Gurudwara , Nanded. } .... RESPONDENTS Mr. S.V.Gangapurwala, Advocate for Petitioner. Mr. G.O.Wattamwar, Advocate holding for Mr. S.G. Rudrawar, Advocate for Res. Nos. 1 to 4 & 13. Mr. G.N. Chincholkar, Advocate for Res.Nos.5,6,8,10 & 17. Mr. A.S.Deshpande, Advocate for Res. No. 16 – Absent. Mr. A.P.Bhandari, Advocate for Res. No. 17 – Absent. WITH WRIT PETITION NO. 2027 OF 2006 Kishan S/o Jalbaji Wade } Age : 58 Years, Occ. Labour, } R/o : Old Mondha, Bhagatsingh Raod, } Nanded, Tq. & Dist. Nanded. } . ... PETITIONER 4 V E R S U S 1. Shakuntalabai W/o Purbhaji Wade } Age : Major, Occ. Labour, } R/o : Sahebsingh Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } 2. Manjula D/o Purbhaji Wade } Age : Major, Occ. Household, } R/o : Sahebsingh Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } 3. Jamunabai D/o Purbhaji Wade } Age : 13 Yrs., Occ. Education, } R/o : Sahebsingh Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } 4. Chitra D/o Purbhaji Wade } Age : 10 Years, Occ. Education, } R/o : Sahebsingh Colony, } Gurudwara Gate No. 3, } Nanded, Tq. & Dist. Nanded. } .... RESPONDENTS Mrs. S.G.Chincholkar , Advocate for Petitioner. Mr. G.O.Wattamwar, Advocate holding for Mr. S.G. Rudrawar, Advocate for Res. Nos. 1 to 4 & 13. Mr. G.N. Chincholkar, Advocate for Res.Nos.5,6,8,10 & 17. Mr. A.S.Deshpande, Advocate for Res. No. 16 – Absent. Mr. A.P.Bhandari, Advocate for Res. No. 17 – Absent. 5 CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 03/02/2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally along with Review Petition. 2. This petition is preferred by original defendant no. 1, who was facing Special Civil Suit No. 117 of 2000 before the learned Civil Judge (Sr.Division), Nanded. 3. The petitioner and the review petitioner impugned orders rendered by the learned Civil Judge (Sr.Division), Nanded, whereby their applications for allowing them to file Written Statements were rejected. 4. Undisputedly, the respondent filed Suit (Special Civil Suit No. 117 of 2000 ) for partition and separate possession. The Suit was instituted on 7/8/2000. She filed an application seeking leave of the Court to sue forma pauperis. The application was opposed by the petitioners ( defendants ). The leave was eventually rejected and, therefore, the respondent preferred Misc. Civil Appeal. The learned District Judge dismissed the Appeal because the respondent expressed willingness to pay the court fees. The learned District Judge directed 6 the trial court to accept the court fees and register the Suit. It was thereafter that the respondent complied with the directions of the leaned District Judge and the Suit was registered. However, the Suit was continued with previous number. The trial court proceeded with the Suit by passing “ No W.S. Order ” dated 29/6/2005. Their applications for permitting them to file the Written Statements were rejected by the trial court. 5. The review petitioner preferred Writ Petition No. 2027 of 2006, which came to be dismissed on 7/12/2006 by this Court at the pre-emptory stage. The review petitioner urges to review the said order dated 7/12/2006 on the ground that the relevant record was not shown to this Court and that this Court proceeded on the footing that the Suit was covered by the amended provisions of the Order VIII Rule 1 of the Code of Civil Procedure though it was instituted, in fact, much prior to the said amendment. 6. The Writ Petition preferred by original defendant no. 2 is on the grounds that no notice was issued after the registration of the Suit and, therefore, the defendants had no knowledge regarding dismissal of the Misc. Civil Appeal preferred by the respondent nor they would get information about payment of the court fees by her and consequent registration of the Suit. It is contended that the opportunity should have been given to the petitioner for filing of the Written 7 Statement in as much as there was no willful default committed by him. 7. Heard learned counsel for the parties. 8. The record and proceedings have been called for in order to verify the fact situation. It is amply clear that the respondent paid court fees in the trial court on 25/11/2004. Obviously, it was the date on which there was due compliance, which could have facilitated registration of the Suit. The Suit was wrongly registered in the year 2000, though the forma pauperis leave was not granted to the respondent. The procedure enumerated under Order XXXIII Rule 1 of the Code of Civil Procedure along with relevant provisions of the Civil Manual was not followed. It is triate that unless leave is granted to an indigent person to file Suit under Order XXXII ( 1 ), the Suit could not be registered. Thus, the starting point for the purpose of taking cognizance of the Suit was from the date of payment of the court fees i.e. 25/11/2004 and after due compliance of the formalities. It does not appear that thereafter afresh summons was issued. The stages of the Suit are not duly followed. It is not disputed that the Misc. Civil Appeal was disposed of at preliminary stage before issuance of notices. It was incumbent on the Civil Court to register the Suit after 25/11/2004 and thereafter to issue fresh notices to the petitioners. For, they had received notices only in respect of the earlier proceedings under Order XXXIII Rule 1 of the Code of Civil Procedure and not of 8 any Suit as such. 9. The learned Civil Judge (Sr.Division), Nanded did not properly appreciate the above fact situation while rejecting the applications of the petitioners. It appears that for want of proper information available through the record, this Court committed an error of treating the Suit as registered in 2000, though legally speaking it should have been taken as registered after 25/11/2004. It is true that the amended provision of Order VIII Rule 1 of the Code of Civil Procedure came into force on 1/7/2002 and, therefore, the Written Statement should have been filed within the specified period. Still, however, for the purpose of such application of the amended provision, it was necessary to examine when was the Suit instituted. The Suit was instituted in the year 2000 though was registered in the year 2004. The legal position is clarified by learned Single Judge of this Court ( F.I. Ribelo, J. ) in Jerry Alex Braganza @ Jeronimo Oriculo Alex Braganza and another V/s Rajeshree @ Rayeshri Ramdas Borkar @ Shobhavati Ramdas Borkar and others - 2003 (4) Mh.L.J. 1034. It is observed by the Single Bench that provision of Order VIII Rule 1 of the Code of Civil Procedure will not be applicable to pending proceedings in the matter of Written Statement. The view taken by the Single Bench is that as per Order V Rule 1, which is substituted by the Amendment Act of 2002, a mandatory duty is cast on the Court while issuing summons to bring it to the notice of the 9 defendant within 30 days or within the extended period of 90 days. So, once it is noticed that such mandatory duty was not required to be followed since the Suit was instituted prior to the amendment, the amended provision of Order VIII Rule 1 of the Code of Civil Procedure will not apply. In the present case, the petitioners were not summoned afresh and, therefore, there was no due summons as contemplated under Order VIII Rule 1 of the Code of Civil Procedure after the Amendment Act came in to force. In other words, they were not intimated that they must file Written Statement within 30 days after receipt of the summons or 90 days if the benefit of extended period is to be availed by them. Needless to say, in the absence of such summons, the case of petitioners will not be governed by the amended provision of Order Order VIII Rule 1 of the Code of Civil Procedure 10. It is well settled that mere delay in filing of the Written Statement by itself can not be a ground to reject the application to file the Written Statement. The causes of delay and other surrounding circumstances must be pragmatically weighed. The impugned orders rendered by the Civil Judge ( Sr.Division) would show that the delay is not viewed from the stand point of view of subsequent developments, which occured in view of the pendency of the application seeking leave to sue as an indigent person. Considering all these aspects, I am inclined to hold that the impugned orders are not sustainable and so also the Order rendered by this Court in Writ Petition No. 2027 of 2006 10 on 7/12/2006 is required to be reviewed. 11. In the result, the Order rendered in Writ Petition NO. 2027 of 2006 on 7/12/2006 is reviewed and the Writ Petition is restored to its original position. Both the Writ Petitions are allowed. Rule made absolute. The petitioners shall be allowed to file Written Statements if costs of Rs. 2,000/- (Rupees Two Thousand only) each are paid to the respondents. The Suit shall be expedited after the payment of costs and the learned Civil Judge (Sr.Division) shall make serious endeavor to decide the Suit within the period of nine (9) months, as far as possible, in view of the fact that it is instituted in the year 2000. The record and proceedings shall be immediately returned to the trial court with a special messenger. [ V.R.KINGAONKAR ] JUDGE knp/WP2391......07