Case: Controller of Court of Ward, Kolhapur &amp; Another Vs. G.N. Ghorpade &amp; Others

was pointed out on behalf of respondent 1 that the said applications did not end with the cancellation of the said notification since the question of possession of the said survey numbers still remained for decision. 10. On the reopening of the Court, the said applications appeared on board for hearing and continued to so appear until June 29, 1965. The appellants had, however, not filed any affidavit until then, although on several occasions they had obtained adjournments for filing it. When the two applications reached hearing on June 29, 1965, counsel for the Government was also absent. Consequently, the High Court proceeded with the said applications ex parte and even delivered its judgment. At the end of the day, counsel for the Government appeared and requested that he should be heard. That request was granted and counsel was heard. His arguments continued the next day. Even at that stage affidavit of the appellants was not ready. Counsel, therefore, asked for another adjournment, but the request was rejected. The arguments on behalf of the appellants were not over on that day. Since the Division Bench hearing those arguments was busy with other matters, the said arguments could not be resumed until July 13, 1965. On July 13, 1965, the appellants sought to tender their reply affidavit. That request was turned down and the Court had finally to decide the special civil applications without there being any reply to them on behalf of the appellants. On that day the learned Advocate-General appeared before the Court and sought to raise certain technical points. These were rejected as being without any merit. He also applied that respondent 1 should be made to appear before the Court as a witness to enable the appellants to cross-examine him. No such notice having been previously given to respondent 1, he was not expected to and was in fact not present in Court. The High Court rejected that application also on the ground of inordinate delay and also on the ground that the appellants had ample opportunity to traverse the statements made on affidavit by respondent 1 in his said special civil applications. Those statements, were according to the High Court evidence on affidavit and in the absence of their having been traversed, constituted a prima facie case of his right to possession of the said survey numbers. The High Court ultimately allowed the said special civil applications and directed the appellants to hand over to respondent 1 possession of the said survey numbers. 11. Mr. V. S. Desai, appearing for the appellants argued that the High Court erred in rejecting the appellants application for filing their counter-affidavit and thus enable them to challenge the correctness of the statements made by respondent 1 in his two special civil applications. He also argued that the appellants were not to be blamed for not having filed their counter-affidavit in time since they were under the impression that the special civil applications would not be proceeded with after the Government had cancelled the said notification. That notification, however, was cancelled on June 29th, 1965. Before that date the appellants had obtained adjournments and had got the special civil applications put off for hearing beyond the summer vacation only on the ground that they should have time to prepare and file their affidavit. Though the appellants had thus obtained time, they did not file their affidavit even on the reopening of the High Court. Even when the special civil applications ultimately reached hearing on June 29, 1965, the counter-affidavit was not ready and was not filed. Indeed, counsel for the appellants was not even present when the special civil applications reached hearing and the hearing commenced. In these circumstances the High Court cannot be blamed when it rejected a fresh attempt to have the matters adjourned to enable the appellants to file an affidavit. The High Court also cannot be blamed for refusing to accept the affidavit on July 13th, 1965, on the ground of inordinate delay. If, on that ground the High Court refused in its discretion to permit the affidavit to be filed, it is impossible to say that that discretion was exercised wrongly or in breach of any principle or practice. It was, no doubt, a pity that in such a case the High Court had to proceed with the special civil applications without the aid of a reply to them. But for that the appellants had clearly to blame themselves. The ground taken by the appellants that they did not file the reply on the assumption that the special civil applications would not be proceeded with after the cancellation of the said notification has no merit, firstly, because the appellants were told, as the High Court has pointed out in its judgment, that the cancellation of the notification did not end the matter, and secondly, because the appellants were not willing after that cancellation to hand over the said survey numbers to respondent 1. There was, therefore, no ground for the appellants to assume that the special civil applications would not be proceeded with. In these circumstances it is impossible to find any fault with the High Court for refusing to allow the counter-affidavit to go on record at that belated stage. Apart from the question as to delay, that would have also meant a further adjournment to enable respondent 1 to prepare and file his rejoinder. 12. There being thus no reply to the two special civil applications, the High Court had to accept the statements made on affidavit by respondent 1 therein as prima facie evidence of his right to possession of the lands in question. Mr. Desai frankly told us that that was the inevitable result flowing from the absence of any counter-affidavit denying the assertions made on affidavit by respondent 1. The consequence of the absence of any reply affidavit was that Mr. Desai could not urge any specific ground upon which the judgment of the High Court could be challenged by him.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. Mr. V. S. Desai, appearing for the appellants argued that the High Court erred in rejecting the appellants application for filing theirt and thus enable them to challenge the correctness of the statements made by respondent 1 in his two special civil applications. He also argued that the appellants were not to be blamed for not having filed theirt in time since they were under the impression that the special civil applications would not be proceeded with after the Government had cancelled the said. That notification, however, was cancelled on June 29th, 1965. Before that date the appellants had obtained adjournments and had got the special civil applications put off for hearing beyond the summer vacation only on the ground that they should have time to prepare and file their affidavit. Though the appellants had thus obtained time, they did not file their affidavit even on the reopening of the High Court. Even when the special civil applications ultimately reached hearing on June 29, 1965, thet was not ready and was not filed. Indeed, counsel for the appellants was not even present when the special civil applications reached hearing and the hearing commenced. In these circumstances the High Court cannot be blamed when it rejected a fresh attempt to have the matters adjourned to enable the appellants to file an affidavit. The High Court also cannot be blamed for refusing to accept the affidavit on July 13th, 1965, on the ground of inordinate delay. If, on that ground the High Court refused in its discretion to permit the affidavit to be filed, it is impossible to say that that discretion was exercised wrongly or in breach of any principle or practice. It was, no doubt, a pity that in such a case the High Court had to proceed with the special civil applications without the aid of a reply to them. But for that the appellants had clearly to blame themselves. The ground taken by the appellants that they did not file the reply on the assumption that the special civil applications would not be proceeded with after the cancellation of the said notification has no merit, firstly, because the appellants were told, as the High Court has pointed out in its judgment, that the cancellation of the notification did not end the matter, and secondly, because the appellants were not willing after that cancellation to hand over the said survey numbers to respondent 1. There was, therefore, no ground for the appellants to assume that the special civil applications would not be proceeded with. In these circumstances it is impossible to find any fault with the High Court for refusing to allow thet to go on record at that belated stage. Apart from the question as to delay, that would have also meant a further adjournment to enable respondent 1 to prepare and file his rejoinder12. There being thus no reply to the two special civil applications, the High Court had to accept the statements made on affidavit by respondent 1 therein as prima facie evidence of his right to possession of the lands in question.Mr. Desai frankly told us that that was the inevitable result flowing from the absence of anyt denying the assertions made on affidavit by respondent 1. The consequence of the absence of any reply affidavit was that Mr. Desai could not urge any specific ground upon which the judgment of the High Court could be challenged by him.