spb/- 1 wp5145-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 5145 OF 2011 Shri Dhanraj Manoharlal Agarwal ... Petitioner. V/s. Shri Nivrutti Devram Rajguru ... Respondent. ----- Mr. V. Shastry h/f. Sanjay Kshirsagar for the Petitioner. Ms. Gunjan Shah h/f. Mr.S.A.Sawant for the Respondent. ----- CORAM : G.S. GODBOLE, J. DATE : 06TH SEPTEMBER, 2011. P.C. : 1 Heard Ms. Gunjan Shah holding for Mr. S.A.Sawant, Advocate for the Respondent. Mr. Sanjay Kshirsagar, Advocate fort the Petitioner has filed a leave note. 2 Office remark shows that the Advocate for the Petitioner had not filed a Demand Draft favouring the Respondent. 3 Learned Advocate for the Respondent appears and makes a statement that pursuant to the earlier order dated 16th August, 2011, a Demand Draft of Rs. 10,000/- has been received. Since the earlier order dated 16th August, 2011 was passed after hearing only the spb/- 2 wp5145-11.sxw Advocate for the Petitioner and since Advocate for the Respondent is ready to argue the Petition on merits, despite leave note of the Advocate for the Petitioner, the Petition is heard immediately. 4 On 16th August, 2011 the following order was passed by this Court in the Writ Petition : “1. Heard Mr. Kshirsagar, Advocate for Petitioner. Leave to amend. Amendment to be carried out forthwith in the prayer clause, as also by correcting the date of the impugned order at page 33 (Annexure G). 2. An exparte Decree was passed against the Petitioner – Original Defendant on 4/5/2007 in Civil Suit No. 209 of 2006, after passing an order of no WS. Civil Appeal filed by the Petitioner was allowed by the learned District Judge- 11, Pune with the following order : “1. The appeal is allowed. 2. Judgment and decree passed by the II Addl. Judge, Small Causes Court, Pune is hereby set aside. 3. The suit is remanded to the court of first instance. 4. The Appellant-defendant is permitted to file his written statement within one month, from the receipt of record to the court of first instance. 5. Consideration the age of the respondent it is desirable to pass the order by expediting the matter. 6. The respondent being a senior citizen, the court of first instance is directed to dispose of the suit giving opportunity spb/- 3 wp5145-11.sxw of being heard to the parties to the suit, within six months from the receipt of this record. 7. Appellant to bear the cost. 8. Decree be drawn up accordingly. 9. R and P be sent to the lower Court. 10. Parties to appear in the court of first instance on 11/1/2011.” 3. Mr. Kshirsagar states that the record and proceeding was received by the trial Court on 4/1/2011 and within one month thereafter an order was passed below Exh. 1 in the suit regarding no W.S. and to proceed exparte against the Defendant on 21/1/2011. Application filed by the Petitioner below Exh. 30 for setting aside the order and taking the written statement on record is rejected by the impugned order dated 1/4/2011 (Annexure G page 33). 4. Mr. Kshirsagar offers to deposit a sum of Rs. 10,000/- towards costs irrespective of the decision in the Writ Petition or the suit to facilitate the Respondent who is a senior citizen of 80 years, to engage an advocate to defend the Writ Petition within one week from today. The statement is accepted. If Demand Draft favouring the Respondent is filed within one week from today, issue notice for final disposal of the Petition returnable on 6/9/2011. In addition to service of notice through court, Advocate for the Petitioner is also at liberty to serve the Respondent by private notice alongwith entire compilation of this Writ Petition, copy of this order and photo copy of the Demand Draft which will be deposited in this court and file spb/- 4 wp5145-11.sxw an affidavit of service. The notice to be issued through court shall specifically indicate that the Petition will be heard and disposed off finally at the stage of admission itself and appropriate order for early disposal of the Suit will also be passed. 5. The court notice shall be served on the Respondent by hamdast through bailiff of Pune Court. Till hearing of this Writ Petition, actual hearing of Civil Suit No. 209 of 2006 pending in the Court of Small Causes at Pune is stayed. . (GIRISH GODBOLE, J) ” 5 Learned Advocate for the Respondent states that exact date on which the Record and Proceedings were received by the Trial Court is not known and it is, therefore, difficult to accept the contention of the Petitioner that the record was received on 04.01.2011. She further submits that admittedly on 11.01.2011, the Advocate had appeared before the Trial Court and since the Petitioner knew about the marriage in his family in advance he should have sought a longer time. 6 I have considered the submissions of the learned Advocate for the Respondent and perused the averments in the Petition and annexures to the Petition. The earlier order passed in Civil Appeal No.703 / 2007 remanding the case to the Trial Court was passed on the ground that the Suit Summons was not duly served. The fact that the daughter of the spb/- 5 wp5145-11.sxw Applicant was married on 20.01.2011 and the fact that the other ceremonies of the marriage continued on 21.01.2011 is not seriously disputed. The Trial Court has passed the order, proceeding ex-parte against the Defendant on 21.01.2011. By the impugned order dated 01.04.2011, the Application Exh. 30 is rejected essentially on the ground that the Court is powerless to extend the time. 7 In my opinion, this is a fit case for exercising jurisdiction under Article 227 of the Constitution of India. Without going into the question as to whether the record was received by the Trial Court on 04.01.2011; even otherwise, the power under section 148 of the Code of Civil Procedure, 1908 can be exercised in a fit case. It is no doubt true that such power can be exercised by the Court which fixed the time. However, considering the age of the Respondent and the fact that the suit for eviction is pending since year 2006, such power can also be exercised under Article 227 of the Constitution of India. The Respondent has already received the costs of Rs.10,000/-. 7 Hence, I pass following order : i Rule is made absolute in terms of prayer clause (a). spb/- 6 wp5145-11.sxw ii The Court of Small Causes is directed to accept the written statement already filed when the Application at Exh.30 in Civil Suit No. 209 of 2006 was filed. iii Hearing of the said Suit is expedited and the Suit is directed to be disposed off on or before 29th February, 2012. [G.S.GODBOLE, J.] .....