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Judgment
A.M. Khanwilkar, J.—Counsel appearing for the Defendants has produced copy of the affidavits sworn by Mr. T. J. Gala dated 15th February, 2008 and Mr. Ramesh Chaphekar dated 16th February, 2008, to be taken on record. This request is opposed by the Counsel for the Plaintiffs. Besides, opposing to take on record affidavits tendered by the Counsel for the Defendants dated 15th February,2008 and 16th February, 2008, Counsel for the Plaintiffs submits that all pleadings accepted by the Office after 31st July, 2007 filed by whichever party should be returned to the respective parties, as the same has been accepted by the Office without formal order being passed in that behalf by the Court.
It is admitted position that the pleadings/affidavits filed by the respective parties after 31st July, 2007 were not accompanied by any formal application for condonation of delay or for permission to file the same, as the case may be. Necessity of filing affidavit prior to 31st July, 2007 was on account of the peremptory order passed on 13th June, 2007, while considering the prayer for ad-interim relief. The parties were clearly put to notice that the pleadings should be exchanged on or before 31st July, 2007, to be filed in the Registry, so that the Motion can proceed for hearing on 6th August, 2007, which was the date notified in the Order itself.
It is also seen from the record that, it is the Plaintiffs, who had carried the matter in appeal, being dissatisfied by the part of the Order passed by this Court on 13th June, 2007; which appeal came to be dismissed on 31st July, 2007, essentially on the ground that as per Order dated 13th June, 2007 the Motion is already ordered to proceed for final hearing on 6th August, 2007. In that sense, the parties were fully conscious of the position that the Notice of Motion would proceed for hearing on or soon after 6th August, 2007. No request was made before the Appellate Court and as aforesaid even before the trial Judge for extension of time to file affidavits by any of the parties after 31st July, 2007.
No explanation is forthcoming as to why the Office has accepted the said affidavits without requiring the parties to obtain prior permission of the Court. Office owes explanation in this behalf. The Prothonotary and Senior Master is directed to seek explanation of the concerned officers, who accepted the affidavits tendered by the respective parties on or after 1st August, 2007, which were clearly beyond the time specified in the Order dated 13th June, 2007. That is a matter, which will have to be considered at the appropriate stage after the report is submitted by the Prothonotary and Senior Master, which shall be placed for seeking necessary direction from the Court on 7th March, 2008.
It is also noticed that the Motion was in fact taken up for hearing before my predecessor on 26th November, 2007. Even on that date, no request was made to the Court for permission to file affidavit or further pleadings by any of the parties. The Court clearly recorded that the matter will proceed for hearing on 3rd December, 2007. Accordingly, I find force in the submission made by the Counsel for the Plaintiffs that the Defendants for the reasons best known to them chose to raise objection regarding the matter being heard by my predecessor on 3rd December, 2007. No such grievance was made before the learned Judge of this Court on 26th November, 2007. Obviously, the attempt was to protract the hearing of the Motion.
Be that as it may, because of the objection taken by the Defendants, the Learned Judge recused from hearing this matter. As a result, as per the direction of the Learned Chief Justice, hearing of the Motion has been assigned to my Bench. Thereafter, the matter was listed before me for direction on 10th January, 2008. On that date, the parties were clearly put to notice that I am fixing this matter for final hearing as a special arrangement on a working Saturday, with clear understanding that the hearing of the Motion will be concluded preferably on the same day. Even at that time, no request was made before me for permission to file pleadings or for condonation of delay in filing pleadings filed after 31st July, 2007. Significantly, no explanation is offered as to why the parties could not complete their pleadings before 31st July, 2007.
Taking over all view of the matter, I am in agreement with the submissions made by the Counsel for the Plaintiffs that all the pleadings/affidavits filed after 31st July, 2007 be ordered to be returned to the respective parties, so that the hearing of the Motion can proceed further on the basis of pleadings already filed till 31st July, 2007, in absence of which the defendants would succeed in their attempt of protracting the proceedings.
Accordingly, it is ordered that the Associate shall forthwith return all the affidavits filed after 31st July, 2007 to the advocate for the respective parties, which affidavits have been filed without taking prior leave of the Court, contrary to the provisions of the Rule 144 of the High Court Original Side Rules, as also specific Order passed by this Court dated 13th June, 2007.
The Prothonotary and Senior Master is further directed to submit report naming the officer(s) responsible for accepting the affidavits after 31st July, 2007, which were not supported by leave granted by the Court for taking the same on record. That report will be considered independently on 7th March, 2008.
Accordingly, I proceed to hear notice of Motion on the basis of pleadings filed by the parties on or before 31st July, 2007.
At this stage, Counsel for the Defendants submits that the Registry cannot be blamed for having accepted the affidavit tendered on behalf of the Defendants alongwith the covering letter dated 15th February, 2008 filed in the Registry. Inasmuch as, the praecipe given by the Advocate states that there is no direction by the Court to file a detailed affidavit in any specified time. This position, even if accepted, it only deals with the situation relating to the affidavits filed on behalf of the Defendants alongwith the letter dated 15th February, 2008. However, it appears that besides the said affidavits, other affidavits have been filed after 31st July, 2008 without taking prior permission of the Court or formal order in that behalf.