1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO: 3223/2007 (Mohd. Nazir s/o Shaikh Nazimuddin vs. Dr.Abdul Quadeer Nazimuddin) ---------------------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. .................................................................................................................................................................. CORAM: Smt. Vasanti A. Naik, J. DATED: 15th JANUARY, 2008. *** Heard Shri Vyawahare, learned counsel for petitioner and Smt. S.M. Mudliar, for Respondent. 2. By this petition, the petitioner challenges the order passed by the 26th Joint Civil Judge, JD, Nagpur in Regular Civil Suit No. 411/2004 on 5.4.2007 rejecting the application filed by the petitioner at Exh.32 for permission to file written statement. 3. The Respondent had filed a suit for permanent and mandatory injunction against the petitioner which was numbered as RCS No.411/2004. That the suit summons were received by the petitioner in the month of March, 2004 but, as the service of summons was done on a female family of the family, it 2 was not a proper service and the ex-parte order passed by the trial Court on 2.4.2004 was subsequently set aside on 8.4.2005. The written statement was not filed by the petitioner within the time stipulated by the provisions of the Civil Procedure Code. The petitioner, therefore, filed an application for filing of written statement on 16.11.2004 at Exh.17. The trail Court allowed the application and permitted the petitioner to file written statement within the stipulated time. The petitioner, however, did not file the written statement within the stipulated time and again filed applications at Exhs. 21 and 22 for grant of time to file written statement. The applications filed by the petitioner for grant of time to file written statement were allowed by the trial Court by the order dated 10.6.2005. The defendant however failed to file his written statement within the time granted by the trial Court and then preferred an application for filing the written statement at Exh.23. The application was rejected by the trial Court on 30.9.2005. It further appears that the petitioner again filed an application Exh.24 for permission to file written statement which was rejected by the trial Court. After the trial Court passed the order dated 30.9.2005, the petitioner did not challenge the same or did not take any steps to set aside the order dated 30.9.2005 and, instead filed an application at Exh.32 3 for grant of permission to file written statement, on 1.7.2006. The prayer made in the application was strongly opposed by the respondent by filing reply thereto. 4. The trial Court, after hearing the counsel on both the sides and after perusing the record, observed in the order that the defendant was given several chances to file the written statement, he had failed to do so. The Court further observed that the petitioner had failed to point out the circumstances due to which he could not file the written statement inspite of several chances. According to the Court, the petitioner failed to point out that the circumstances which prevented him from filing the written statement were exceptional or beyond his control. The order passed by the 26th Joint Civil Judge JD, Nagpur is challenged in the instant petition. 5. I have perused the application filed by the petitioner for grant of permission to file written statement, the reply filed by the respondent thereto as also the impugned order passed by the trial Court on 5.4.2007. It is stated in the application for grant of permission to file written statement that the defendant did not file written statement as the application filed by the 4 defendant under O.7 R.11 of the Code, for rejection of the plaint was pending before the trial Court. It is, then, stated in the application that the defendant engaged another Advocate to conduct the case as he became aware that the earlier counsel had not filed any written statement on record. It is further stated in the application that the defendant is an illiterate person and he was not asked by his earlier counsel to file the written statement. In the reply to the application, the respondent had pointed out that the petitioner had filed applications at Exhs. 17 Exh.21 and Exh.22 for time to file written statement. The Court had allowed the applications for grant of time to file written statement. It is stated in the reply that inspite of the various opportunities to the petitioner, he did not file the written statement and filed applications at Exhs. 23 and 24 for grant of time to file written statement which were rejected. According to the respondent, the reasons stated by the petitioner about not filing the written statement due to the pendency of the application filed by the petitioner and the Order Rule 11 of the CPC was not proper. It was stated in the reply that the application was not tenable. 6. On perusal of the application, reply and the order passed by the trial Court, it is evident that the 5 defendant had failed to file a written statement in spite of the fact that the trial Court had granted a number of chances to the petitioner to file the same. It is brought to the notice of this Court that the petitioner was granted time to file written statement in terms of the orders passed by the trial Court on Exhs. 17, 21 and 22, as the petitioner had not filed the written statement within the time prescribed by the provisions of the Code. It also appears from the record that though the applications filed by the petitioner for grant of time to file written statement at Exhs. 23 and Exh.24 were rejected by the trial Court , the petitioner did not take any steps seeking the setting aside of the orders passed by the trial Court on those applications. In the instant petition also, the petitioner has not sought a writ of certiorari for quashing the orders passed on applications below Exhs. 23 and 24. In this background the trial Court was justified in rejecting the application (Exh.32) filed by the petitioner for grant of time to file written statement. The Court rightly observed that the defendant was given several chances to file written statement but he failed to do so. It is conspicuous to note that the reasons stated by the petitioner for grant of permission to file written statement in the application at Exh. 32 and the reasons stated by the petitioner for grant of permission to file written statement in para nos. 6 4 and 5 of this Petition, are not the same. No plausible ground has been made out by the petitioner to show as to why the petitioner had not filed the written statement in spite of various chances granted by the trial Court. In the facts and circumstances of the case, it cannot be said that the trial Court committed any error, much less a jurisdictional error, in holding that the petitioner had failed to show that he could not file the written statement due to circumstances which were exceptional or beyond the control of the petitioner. In fact, the manner in which the defendant proceeded in the case clearly shows that the defendant was negligent in prosecuting the matter. Hence there is no reason for interfering with the order passed by the 26th Joint Civil Judge JD Nagpur on 5.4.2007 in exercise of the jurisdiction under Art. 227 of the Constitution of India. 7. For the reasons aforesaid Petition fails and is dismissed with no orders as to costs. JUDGE sahare