1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5242 OF 2009 ( Dr. Arunkumar Narayanrao Deshmukh & another . -: versus :- Mrs. Suwarnamala Rajendra Salvi & others ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : NOVEMBER 26, 2009. Heard finally by consent of Shri J.J. Chandurkar, learned counsel for petitioners, Shri A.A. Naik, learned counsel for respondent no.1 and Shri Rohit Joshi, learned counsel for respondent no.2. Shri Chandurkar, learned counsel has pointed out that the present respondent no.1 i.e. original defendant no.5 who preferred only to watch the proceedings for almost 16 years, suddenly at crucial stage wanted to help the plaintiff and for that purpose moved application seeking leave Under Order IX Rule 7 of Code of Civil Procedure to file written statement. He states that, without considering the relevant provision and facts, the application has been allowed. Shri Naik, learned counsel has pointed out that the defendant no.5 was proceeded without written statement and ex-parte and the subsequent amendments in pleadings or 2 change in stand by the parties including bringing on record of a Will was never communicated to her. He states that as per Bombay Amendment to Order VI Rule 17, a party served, and not participating in the proceedings is required to be re- served with such amended pleadings. He further contends that in 2005 provisions of Hindu Succession Act were amended and the right of respondent no.1 in ancestral property was enhanced. In view of this enhancement, the later developments which came to her knowledge, defendant no.5 moved application under Order IX Rule 7 at Exh.385, and sought leave to file written statement. He argues, that after considering all these facts, as the trial Court found that it is necessary to grant such leave, permission has been granted. The contention of learned counsel for petitioner that the written statement has been filed by the defendant no.5 to help the plaintiff in his challenge to Will produced by the present petitioner no.2. However, facts show that the application of said plaintiff to examine hand writing expert was allowed on 15.10.2004 itself, and that order was questioned before this Court in Writ Petition No.311/2005. That Writ Petition was allowed on 21.02.2007 by this Court. Thus, at the time i.e. on 28.09.2006 when defendant no.5 [present respondent no.1] moved application under Order IX Rule 7, the position on record before the trial Court in this respect was in favour of the plaintiff. However, the said application clearly shows that respondent no.1 was watching developments in the suit and was expecting some solution in the matter. Later on she found that as the situation was worsening, she thought it fit 3 to file written statement. She has further stated that she was marked absent and proceeded without written statement and in such circumstances, she had no knowledge of subsequent developments or subsequent change in pleas. In this background, she has relied upon the provisions of Order VI Rule 17 of Civil Procedure Code. The written statement which has been accepted by the trial Court by the impugned order seeks to reopen the entire trial and is not restricted only to two Will Deeds, which are placed on record. Both the Wills are dated 18.8.1987. Perusal of the impugned order reveals that the trial Court has found that, defendant nos.5 and 6 are the daughters of original defendant no.1 who died on 04.09.1994 and as per the amended provisions of Section 6 of the Hindu Succession Act, daughter becomes co-parcner. In view of this position, the Bombay amendment to Order VI Rule 17, the trial Court found that it was incumbent upon the plaintiff and said defendant no.1[a] Sameer to give notice to defendant no.5. It has also considered the arguments that no such notice was given to it. The reasoning as contained in paragraph no.8 shows that subsequent events which occurred during the pendency of the suit necessitated that defendant no.5 should file such written statement on record. Though there was specific stand, that she was marked absent, whether she was being represented by any counsel or then there was total absence during all these years, has not been mentioned any where in the impugned order. The application Exh.385 in paragraph no.4 clearly states that she was initially watching the developments and expected some solution to avoid confrontation. It further says that how 4 amendment has taken place is reflected on record, compelling her to file said application at Exh.385. This stand on affidavit or its implication has not been evaluated by the trial Court. The said contention is qualified by later part in which she has stated that the subsequent amendment on record reveal that, plaintiff as also defendant nos. 1 to 3 were all together raising such pleas, which adversely affected her rights and share and though she was marked absent, there was no order directing to proceed without written statement. Thereafter, she has pointed out Bombay Amendment to Order VI Rule 17. Perusal of judgment dated 01.09.2008 by this Court in Writ Petition No.2813/2007, shows that respondent no.1 was proceeded without written statement on 16.11.1990. It further shows that the written statement in question was filed when suit was for judgment. Merely because defendant no.6 was allowed to file written statement later on, it does not follow that respondent no.1 can also be granted that permission. As I find that, in the impugned order dated 21.10.2008, this plea of defendant no.5 in her application has not been appropriately considered, and order has been passed only because of subsequent amendment to Hindu Succession Act, the impugned order cannot be sustained. It is to be noted that defendant no.5 always had some right in suit property and she could have therefore, taken precaution to safeguard it by filing written statement. The amendment to Section 6 in the year 2005 enhancing that share therefore can not be the only reason for granting her permission to file written statement almost after 16 years. The silence was of 5 16 years, and plea raised needed to be appreciated by the court below before passing the impugned order. The learned counsel for respondent no.1/ defendant no.5 has tried to show that the Court was inclined to grant her such permission as court found the written statement necessary. Reliance is placed on later part of the Order VIII Rule 9 of Civil Procedure Code, in support. However, from the impugned order it is not apparent that after full application of mind to the facts on record, the trial Court desired such written statement on record. It has not considered whether pleas in written statement met requirements of Order VIII Rule 9 or they were for first time trying to meet original case and effort was to have a retrial by enabling respondent no.1 i.e. defendant no.5 to cross examine all witnesses again. The learned Counsel were asked about the exact implication of plea as taken in paragraph nos. 4 and 5 in Exh. 385, however, both the learned counsel are not in a position to state what is the exact position. Infact after having heard respective counsel for more than 30 minutes, it would not be proper for this court to adjourn the matter only for said purpose. As I find that the aspects material to exercise of jurisdiction while passing the impugned order dated 21.10.2008 has not been considered by the trial Court, the said order passed below Exh.385 is hereby quashed and set aside. The said application is restored back to the file of Civil Judge, Senior Division, Amravati to decide afresh. As the matter was at the stage of judgment, the trial Court to attempt to decide this application as early as possible and in any case by 31.01.2010. 6 Writ Petition is allowed in the aforesaid terms. Rule accordingly, with no order as to costs. JUDGE Rgd.