1 wp5835.09 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.5835 OF 2009 1. Kaduba S/o Mahadu Palkar age : 64 years, Occ : Retired, R/o Plot No. 6-A, CIDCO, New Aurangabad. 2. Sau Kaveri Kaduba Palkar Age : 52 years, Occ : Household, R/o Plot no. 6-A, CIDCO, New Aurangabad. 3. Prabhakar Suryabhan Pandit Age : 46 years, Occ : R/o G-3/-1, Sector N-7, CIDCO, Aurangabad. ..PETITIONERS -VERSUS- Afzal S/o Budhan age major, Occ R/o Devlai, Tq. & Dist. Aurangabad. ..RESPONDENT ..... Mr.D.P. Palodkar, Advocate for petitioners. Mr. A.P. Bhander, Advocate for respondent. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 15th February, 2011. ORAL JUDGMENT : 1. Both counsel pointed out that the Petition was to be disposed of finally and was listed on some occasions for the same purpose, but could not be taken up. The respondent-defendant has urged that by impugned order his written statement is accepted on record and that order has been stayed by this Court. The suit is 2 wp5835.09 proceeding further and is now to reach the stage of final arguments. Therefore, I heard respective Counsel on 10.02.2011 and thereafter today i.e. 15.02.2011. 2. Advocate Mr. Palodkar for petitioners-plaintiffs has urged that ignoring the previous conduct of the respondent-defendant and earlier order passed proceeding without written statement against him and also overlooking the time lost in the process, by impugned order, written statement is allowed to be filed without recording any satisfaction about the justness and sufficiency of the cause shown. He contends that there is no exceptional circumstance on record. He therefore states that this Court has rightly while issuing Rule in the matter granted interim relief and suit is allowed to proceed further. 3. Advocate Mr. Bhandari for respondent has stated that the impugned order can not be read in isolation. It is passed on application and hence application is its part and parcel. He invites attention to the reasons put forth in that application namely talks of compromise between the parties. He has also produced before the Court entire order sheets to show how the petitioners-plaintiffs have remained absent and permitted the matter to be adjourned for long time. According to him, these adjournments were only because of those talks of compromise. He has further urged that as the trial Court has exercised discretion available to it, this Court can not interfere in its present jurisdiction. He relied upon the judgment reported at " 2004(2) Bom. C.R. 441 ( Shivchandrai Jhunjhunwala, Charitable Trust and others V/s Govindprasad Ganeshprasad Dubey and others) and "2007(5) Bom. C.R. 496" (Vivek Lt. R.B. Mokadam V/s Kiran S.K. Nashine) in support of 3 wp5835.09 his contentions. The judgment of Hon'ble Apex Court reported at "2008(3)Bom. C.R. 1" ( Zolba V/s Keshao & ors) is pressed into service, to urge that the procedure is hand-maid of justice and hence substantive cause can not be made to suffer for such lapses. The judgment of Hon'ble Apex Court reported at 2009(1)Bom.C.R. 81" ( Sambhaji & ors V/s Gangabai & ors) is relied upon to show that the provisions of Order 8 Rule 1 of the Civil Procedure Code are found to be directory and their interpretation has to be in the mode and manner conducive to advance cause of justice. For the same purpose the judgment of Single Judge reported at "2009(Supp.) Bom.C.R. 15 (Mangala Pradeep Lambade V/s Madhubala Madhukar Mishra) is also relied upon. 4. Perusal of the judgment reported at "2007(5)Bom.C.R. 496" (Vivek Lt. R.B. Mokadam V/s Kiran S.K. Nashine) shows that there some intervening events like application under Section 151 of the Civil Procedure Code, its hearing and therefore making application for adjournment by defendant and then the date of last application which was also granted and time was extended to file written statement, are taken into account. In that background, the judgment of the Hon'ble Apex Court reported at "2007(9) Scale 202" ( R.N. Jadi & brothers V/s Subhashchandra) is relied upon. In "2009(Supp.) Bom.C.R. 15" ( Mangala Pradeep Lambade V/s Madhubala Madhukar Mishra) very same judgment of the Hon'ble Apex Court is relied upon and the Court has found that along with application seeking permission to file written statement, written statement was also filed. The earlier Advocate had returned brief and another Advocate engaged by defendant had taken these steps. There was also an application for condonation of delay. The 4 wp5835.09 judgment of the Hon'ble Apex Court reported at "Zolba V/s Keshao & others" as also "Sambhaji & others V/s Gangabai & others" (Supra) show that the said provisions of Order 8 Rule 1 are only directory and being procedural need to be interpreted to advance cause of justice. In "Sambhaji and others V/s Gangabai and others" (Supra) the Hon'ble Apex Court has set aside the impugned order of the High Court affirming the order passed by the trial Court refusing acceptance of the written statement. All these judgments therefore show particular view adopted in the facts before it by the Courts. 5. In "Shivchandrai Jhunjhunwala, Charitable Trust & others V/s Govindprasad Ganeshprasad Dubey & others"(Supra), the Writ Petition was against interlocutory order and in that background it has been found that under Article 227 of the Constitution of India, the Court can not in routine course interfere ignoring the mandate of statute or legislation on the subject i.e. provisions of amended Section 115 of the Code of Civil Procedure. The judgment also holds that in an extra-ordinary situation and for a legitimate reason or cause, power under Article 227 of the Constitution can be exercised. 6. Here the relevant developments before the trial Court can be summed up as under. Sr. No. Date Events 1. 01.01.2004 Suit for perpetual injunction came to be instituted by the petitioners/plaintiffs. 2. 01.01.2004 Copies of summons were served on the defendant as he had filed caveat. 5 wp5835.09 3. 03.01.2004 (Exh. 8) Defendant filed his say to the temporary injunction application at Exh. 5. This say is neither signed nor verified by the defendant. 4. 08.03.2004 (Exh. 14) Defendant filed pursis to treat his say as written statement. The learned Trial Court rejected the pursis as the same was neither signed nor verified by the defendant. 5. 07.02.2007 (Exh. 18) The defendant had filed one more pursis stating that, earlier pursis to treat his say as written statement came to be rejected for want of verification. The defendant had stated that, "Hence, separate/new pursis is passed with verification". 6. 16.04.2007 The learned Trial Judge rejected the pursis filed by the defendant at Exh. 18 by observing that, no written statement order is passed against defendant on 24.01.2005 and the same is not yet set aside. The learned Trial Court has thus rejected the pursis filed by the defendant. 7. 4.9.2008 & 23.09.2008 Plaintiffs/petitioners examined their witnesses. 8. 29.09.2008 Case adjourned for cross examination of witness by defendant. 9. 13.10.2008 Inspite of seeking adjournment, the defendant and his counsel were absent and hence, "No Cross" order came to be passed against the defendant. 10. 05.11.2008 (Exh. 32) The plaintiff had filed pursis closing his evidence. 11. 10.12.2008 (Exh. 33) An application came to be filed by the defendant along with one more pursis to set aside the "No W.S." order and to take the pursis along with verification to treat the W.S. on record. 12. 10.12.2008 The plaintiffs have filed say to the application of the defendant. 13. 23.01.2009 The learned Trial Court allowed the application at Exh. 32. 6 wp5835.09 7. Temporary injunction application was decided on 27th April, 2006. Both the parties have noticed rejection of that application on 21st August, 2006. 8. The order sheets produced by the respondent reveals various dates on which the matter was adjourned. However, it is not in dispute that alleged talks of compromise were disclosed for the first time in application at Exh. 33 filed on 10.12.2008. It is not possible to hold that all earlier adjournments were on account of alleged talks of compromise. It is to be noted that the present respondent has on 08.03.2004 filed pursis and made an attempt to adopt his reply to application at Exh. 5 as his written statement. That pursis was rejected by the trial Court on the ground that it was neither signed nor verified by the parties. That order was not challenged by respondent. About 3 years thereafter i.e. on 07.02.2007, respondent filed pusis at Exh. 18 and with reference to order dated 08.03.2004 attempted to supply the verification on record. On 16.04.2007, that pursis was also rejected. The trial Court then observed that on 24.01.2005 `No Written Statement' order is already passed against the respondent and it was not set aside. According to Advocate Mr. Bhandari for respondent there is no order as such passed on 24.01.2005. 9. It is not necessary for this Court to go into that controversy. The certified copies of the orders ought to have been produced as normally such orders are passed below Exhibit-1 i.e. below Plaint. The respondent-defendant has not taken any steps thereafter and on 10.12.2008, he filed above mentioned application at Exhibit-33. In the meanwhile, the petitioners-plaintiffs had examined their witnesses. Case was adjourned for their cross examination by 7 wp5835.09 defendant and because of their absence, the Court has passed `No Cross Order'. On 05.11.2008, by filing pursis at Exhibit-32, the petitioners-plaintiffs closed their evidence. 10. In his application at Exhibit-33, the respondent-defendant also made prayer for setting aside the no written statement order and to take pursis along with verification and to treat the same as written statement on record. Application was opposed and by impugned order dated 23.01.2009, the trial Court has allowed that application. The said application was opposed by counsel for plaintiffs-petitioners who pointed out all relevant developments to trial court. 11. When impugned order dated 23.01.2009 is perused in this back ground, it is apparent that the trial Court has not looked into entire history. It has only found that plaintiffs closed their evidence and time gap needed to be taken into consideration. But then it found that vide his reply to application at Exhibit-5, the respondent- defendant had already placed his defence on record and hence fair trial was necessary. 12. It is to be noted that the provisions of Order 8 Rule 1 of Civil Procedure Code are no doubt held to be directory but it is settled that directory provisions also need substantial compliance. The reason put forth by the respondent-defendant for not filing written statement is only talks of compromise and he has stated that those talks of compromise had failed and the petitioners-plaintiffs had placed on record their affidavits of examination-in-chief. The correctness or otherwise of said reason is not even looked into by the trial Court. Not only this if fare trial as envisaged by it was the 8 wp5835.09 only moto, it was necessary for it to refer to the earlier orders passed on 08.03.2004 and thereafter on 16.04.2007. Even those orders do not find any consideration. If filing of affidavit evidence by plaintiff was to form a valid reason, petitioner/defendant did not file Exh.33 immediately thereafter. No cross order was suffered by him on 05.11.2008 and then after more than one month i.e. on 10.12.2008, he preferred Exhibit-33. 13. It is therefore obvious that the arguments of exercise of discretion by trial Court can not be accepted. The discretion can be said to have been exercised by the Court when all facts having bearing on it are taken into consideration and thereafter finding is arrived at. When there were earlier orders dated 08.03.2004 and 16.04.2007 already holding the field, the trial Court could not have indirectly reviewed the same. 14. In this situation, I find the impugned order passed on 23.01.2009 unsustainable. It can not be said that the trial Court exercised discretion available to it in the matter in accordance with law. 15. The Petition is therefore allowed. Rule made absolute accordingly. No costs. 16. Request of Advocate Mr. A.P. Bhandari for respondent to stay this judgment is rejected. (B.P. DHARMADHIKARI) JUDGE gas/5835.09