1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4095/2011 (VAISHALI VIJAY DESHMUKH VERSUS JAYANT NILKANTHRAO DESHMUKH) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.M. Ahirrao, counsel for the petitioner. Shri S.L. Kotwal, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 12 , 2011 . By this petition, the petitioner impugns the order passed by the trial Court rejecting an application filed by the petitioner Under Order IX Rule 13 of the Code of Civil Procedure for setting aside the exparte judgment as also the judgment passed by the first appellate Court on 18.06.2011, dismissing the appeal filed by the petitioner. The respondent had filed a civil suit for specific performance of contract against the petitioner. The petitioner did not file the written statement in time and, therefore, the trial Court passed an order of “No Written Statement” against the petitioner on 14.07.2005. By the order dated 14.07.2005, the trial Court observed that by merely filing a pursis dated 22.04.2004 for treating the reply on temporary injunction application as her written statement, the reply for temporary injunction application could not have been treated as the written statement. The order of “No Written Statement” dated 14.07.2005 was not challenged by the petitioner and the same attained finality. The respondent filed evidence on 2 affidavit on 26.07.2005 and on 17.08.2005, the counsel for the petitioner filed a No Instructions Pursis. On 19.10.2005, the trial Court passed an exparte judgment against the petitioner. Being aggrieved by the judgment dated 19.10.2005 passed by the trial Court, the petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the exparte judgment and decree. The trial Court, by an order dated 31.10.2009, rejected the application filed by the petitioner for setting aside the exparte judgment and decree. The petitioner preferred an appeal against the said order but, the appeal was also dismissed by a judgment dated 18.06.2011. On hearing the learned counsel for the parties and on perusal of the facts of the case and the orders passed, it appears that both the Courts were justified in holding that the application under Order IX 9 Rule 13 of the Code of Civil Procedure was not tenable. The Courts rightly held that the judgment was passed by the trial Court by invoking the provisions of Order VIII Rule 10 of the Code of Civil Procedure. The submission made on behalf of the petitioner that the provisions of Order IX Rule 6 applied to the case is liable to be rejected as in this case, the provisions of Order VIII Rule 10 are clearly applicable. Both the Courts considered the case law on this issue and held that the application filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure was not maintainable. The view expressed by both the Courts is just and proper and calls for no interference in exercise of the writ jurisdiction. 3 The submission made on behalf of the petitioner that this could not have been a case of proceeding against the petitioner without the written statement as the reply to the temporary injunction application could have been treated as a written statement is liable to be rejected as it is necessary to note that the trial Court had never passed an order treating the reply to the temporary injunction application as the written statement. In fact, by the order dated 14.07.2005, while passing the “No Written Statement” order, the trial Court had clearly observed that the reply to the temporary injunction application could not be treated as the written statement. The order dated 14.07.2005 had attained finality and since the petitioner had not filed a written statement and the trial Court also did not pass an order treating the reply to the temporary injunction application as written statement, the Courts were justified in rejecting the application under Order IX Rule 13 of the Code of Civil Procedure. For the reasons aforesaid, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE