DHIRAJ VIJAYKANT KUDALE Vs. ANITA RAMCHANDRA RASKAR

JUDGEMENT

(1.) Rule, with the consent of the parties made returnable forthwith and heard.

(2.) The Writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 23.08.2007 passed below Exhibit34, order dated 04.03.2008 passed below Exhibit 46 and another order of the same date i.e. 04.03.2008 passed below Exhibit47. By the said orders, the applications for setting aside the 'no Written Statement' order, as also the application for being permitted to file the Written Statement on behalf of the Respondent No.8 came to be rejected. The issue in the Petition is, therefore, as to whether, the Respondent No.8 should be allowed to file his Written Statement. The facts germane to the said issue can in brief be stated thus:

(3.) The suit summons came to be served on the Defendant No.8 on 13 th May, 2007. The Defendant appeared in the said suit on 15.06.2007 through the Advocate and filed an application Exhibit27 that though the summons have been received by the said Defendant, the Plaintiff had not supplied the copy of the Plaint and the documents at Exhibit3. The relief sought by the application Exhibit27 was therefore a direction to the Plaintiff to furnish a copy of the Plaint and the documents Exhibit3. On the said application, an order came to be passed by the learned Judge to the effect that the same is "Allowed". In spite of the said order, it was the case of the Defendant No.8 that the copies of the Plaint and the documents covered by Exhibit3 were not furnished to him. Hence, on the summons being served on the Defendant Nos. 6 & 7 sometime prior to 15.02.2008, the Defendant No.8 appeared in the said Suit along with the said Defendant Nos.6 and 7 and filed an application Exhibit34. In the said application Exhibit34, in paragraph no.6, the Defendant No.8 has averred that the said Defendant has still not received the copy of the Plaint and the documents in spite of the Court having passed an order to the said effect. It was therefore prayed that the Suit be dismissed for non compliance of the order dated 15.06.2007 passed on Exhibit27. The said application Exhibit34 filed by the Defendant No.8 came to be rejected by the Trial Court interalia on the ground that the order passed on 15.06.2007 was passed in a "casual" manner by the Court and that on perusal of the suit summons and notice of the temporary injunction application Exhibit21, it is revealed that the Defendant No.8 has received the notice and the suit summons along with the documents and the copy of the Plaint. It was further observed that the Defendant No.8 cannot take advantage of an order which has been passed " in a casual manner". Thereafter, an application Exhibit44 came to be filed by the Defendant Nos.6,7 and 8 for being permitted to file the Say/Written Statement. The reasons which were mentioned in the application Exhibit34 were reiterated in paragraph no.2 of the said application Exhibit44. The said application Exhibit44 was partly allowed to the extent of the Defendant Nos.6 and 7 who were granted time to file their Written Statement and was rejected insofar as Defendant No.8 is concerned on the ground that as per the order passed below Exhibit 34, last chance was granted to the Defendant No.8 to file his Written Statement by July 2007. The Defendant No.8 thereafter moved the application Exhibit46 for setting aside the said "no Written Statement" order. In the said application, the grounds which were set out earlier namely that the copies of the Plaint and the documents Exhibits 1 & 3 were not furnished and since the Defendant Nos. 6 and 7 have been permitted to file a Written Statement a joint Written Statement of all the Defendants i.e. Defendant Nos.6, 7 and 8 is being filed. It was prayed in the said application that the "no Written Statement" order passed against the Defendant No.8 dated 15.02.2008 be set aside and the Written Statement of the Defendant No.8 be taken on record. The said application Exhibit46 came to be rejected by the Trial Court by observing that the Defendant No.8 has not filed his Written Statement within the statutory period and that no exceptional circumstances have been mentioned in the application which prevented the Defendant No.8 from filing the Written Statement, by another order passed on the said day, on Exhibit47. The Trial Court directed that the Written Statement filed jointly by the Defendant to be read and recorded only in respect of the Defendant Nos.6 and 7.