Shabbir vs Nawabbi & Ors.

. The present petitioner/defendant no.3 has instituted present petition seeking a decree for removal of encroachment, recovery of possession and perpetual injunction under order XX Rule 12 of Civil Procedure Code for Mesne Profit.

The suit summons were served on the defendants. The present petitioner/defendant no.3 failed to file his written statement within the prescribed period. Even during the extended period granted for that purpose, he chose not to file Written statement. Consequently, ‘no say’ order was saddled on him.

Thereafter, defendant no.3 filed an application below Exhibit-24 seeking to set aside the said order and for permission to file written statement. The said application came to be rejected by the learned Civil Judge, Senior Division, Newasa on 18.03.2023. The Trial Court observed that no sufficient reason was shown to explain the delay caused in filing the written statement.

The recitals of the impugned order show that the Trial Court was predominantly annoyed by the conduct of the defendant particularly in view of the fact that the defendants were residing at the same address and that defendant no.3 was reported to have declined to accept the Court notice.

Mr. S. S. Pawar h/f Mr. R. R. Karpe, learned Advocate for the petitioner submits that the delay caused in filing written statement was neither intentional nor deliberate. He submits that in the application, sufficient reasons are mentioned explaining the delay. On these grounds, he prays to allow the Writ petition.

Mr. Y. B. Pathan, learned Advocate for respondents appearing through video conferencing fairly submits that before the Trial Court as also before this Court, the plaintiffs are ready to permit the defendant to file his written statement provided that some costs be imposed on him. He would submit that the plaintiffs are more anxious to have the suit decided on merits rather than on technicalities. On instructions, he therefore prays that an appropriate order be passed, and in the event of allowing the Writ Petition same may be made subject to payment of appropriate costs.

Heard learned Advocates for the respective parties. Indeed there is delay in filing application seeking setting aside the ‘no say’ order and infact there is also a delay in filing the Writ Petition itself. In the application, it was stated that on account of the Covid-19 pandemic, there was a communication gap between the parties and their Advocate and hence, the Written statement could not be filed within time.

So far as denial to accept Court notice is concerned, an unconditional apology is tendered on behalf of the defendant. At the same time, having regard to the nature of the controversy between the parties, it would be in the interest of justice to permit the defendant to come forward and place his defence on record by filing written statement. The civil rights raised before the Court deserves to be adjudicated on merits.

In view of the above, I deem it appropriate to allow the Writ Petition by permitting the petitioner to file the written statement with directions to the Trial Court to take the written statement on record and read the same in the proceedings.

It is submitted that the written statement is already filed with the permission application.

It is necessary to impose some costs upon the petitioner. Considering that the suit is of the year 2019 and that the defendant unjustifiably declined to accept the Court notice, I deem it appropriate to alow the Writ Petition subject to imposing costs of Rs.15,000/- by the petitioner to be deposited in the Trial Court. In view of this, I pass following order: