1 wp.9370.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9370 OF 2011 M/s.Trinity Fown Development & Finance Pvt Ltd. : Petitioner. Versus Smt.Indumati Vrajial Babaria and ors : Respondents. Shri Avinash B Avhad for the Petitioner. Mr. S M Oak i/by Mr. B G Tangsali for the Respondents. CORAM : R M SAVANT, J. DATE : 05th December 2011 P.C. 1 Not on Board. Mentioned in view of the fact that the Application in question is to come up for hearing before the trial Court tomorrow. Hence taken on board and heard with the consent of the parties. 2 The above Petition takes exception to the order dated 19/4/2011 passed by the learned Joint Civil Judge, Senior Division, Pune by which order the Application Exhibit 62 for withdrawal of “No evidence Purshis” filed on 17/4/2009 by the Applicant in the suit in question, came to be rejected. 3 It is required to be noted that the Regular Civil Suit No.1688 of 2006 has been decreed by the trial Court on 26/7/2007 against the Petitioner. The said decree was for specific performance in respect of land bearing Survey No.35 Hissa No.1/2 admeasuring 4 Hectres and 53 R at village Bavdhan, Tal 2 wp.9370.11.sxw Mulshi, District Pune. The said decree was passed exparte in view of the fact that the Petitioner who was the Defendant in the said suit did not appear. The Petitioner has thereafter filed an Application under Order 9 Rule 13 of the Code of Civil Procedure on 11/7/2008 for setting aside the said ex-parte decree. The said Application was numbered as Misc. Civil Application No.527 of 2008. In the said Application the advocate for the Petitioner has filed a Purshis on 17/4/2009 stating that the Applicant i.e. the Petitioner herein does not intend to lead any oral evidence. It appears that thereafter the said Application under Order 9 Rule 13 was proceeded with and the Respondents herein i.e. the Decree Holders have led their evidence and their evidence has been closed. It appears that in November 2009 the Petitioner had filed an application for withdrawal of the said Purshis dated 17/4/2009 that he did not want to lead any oral evidence. The ground stated in the said Application was that the said Purshis was filed by the advocate as there was a communication gap between him and his advocate. The said Application numbered as Exhibit 48 came to be allowed by an order dated 30/12/2009 and the Petitioner was accordingly allowed to withdraw the Purshis dated 17/4/2009. 4 Aggrieved by the said order dated 30/12/2009, the Respondents herein filed a Writ Petition in this Court being Writ Petition No.158 of 2010. In the said writ petition the Petitioner made a statement that he would withdraw the allegations made against the earlier advocate and file a fresh Application. In view of the said statement made by the Petitioner, this Court set aside the 3 wp.9370.11.sxw order dated 30/12/2009 and granted liberty to the Petitioner to file a fresh Application for withdrawal of the Purshis dated 17/4/2009. It is pursuant to the liberty granted by this Court in the said writ petition that the instant Application Exhibit 62 came to be filed and though the Petitioner was obliged to give detailed reasons as to why the Purshis dated 17/4/2009 was required to be withdrawn, reading of the Application Exhibit 62 discloses that the reason given is the same as the one given in the Application-Exhibit 48 that there is a communication gap between him and his advocate was stated. The said Application came to be rejected by the impugned order dated 19/4/2011. Whilst rejecting the said Application, the learned Joint Civil Judge, Senior Division Pune has observed that since the dispute is limited to the issue as to whether the summons has been served on the Defendant i.e. the Petitioner herein or not, the same can be proved by the Petitioner by documentary evidence. 5 It is sought to be contended on behalf of the Petitioner that this Court may put the Petitioner to terms and may thereafter allow him to lead oral evidence by setting aside the purshis dated 17/4/2009. The conspectus of facts as disclosed above shows that though the purshis was filed on 17/4/2009, the application for withdrawal of the same made in November 2009. By that time the evidence of the Decree Holders was already complete and closed. The facts further disclose that though the liberty was granted to the Petitioner to give detailed reasons, the instant Application Exhibit 62 does not cite any 4 wp.9370.11.sxw other reason than the one mentioned in the earlier Application Exhibit 48. It appears that the purshis dated 17/4/2009 was filed by the erstwhile advocate of the Petitioner in view of the fact that he was not receiving instructions from the Petitioner. 6 In my view, considering the fact that the issue as to whether the summons were served upon the Petitioner or not, could be adequately proved by producing documentary evidence. The order passed by the trial Court for rejecting the instant Application Exhibit 62 for withdrawal of the purshis dated 17/4/2009 cannot be faulted with. There is no illegality or infirmity in the impugned order. In that view of the matter no case for interdiction in the writ jurisdiction of this Court under Article 227 of the Constitution of India is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]