PRADIP UTTAMRAO PATIL Vs. SAURABH PRAMOD MAHAJAN

JUDGEMENT

(1.) By this petition, petitioners challenge the order dtd. 10/3/2022 passed by the Joint Judge, Senior Division, Dhule rejecting application filed for setting aside 'no written statement' order, for condonation of delay in filing written statement and for taking on record their written statement.

(2.) The suit is filed by plaintiff/respondent for specific performance of agreement dtd. 20/10/2008 and for alternate relief of compensation. The defendant was served with the summons in the suit. Though he appeared in the suit, he failed to file written statement. Therefore, 'no written statement' order was passed on 7/12/2013. Instead of seeking recall of 'no written statement' order dtd. 20/12/2013 defendant filed application for rejection of plaint under the provisions of Order 7 Rule 11 of the Code of Civil Procedure (for short 'the Code') on 20/12/2013. That application came to be partly allowed by order dtd. 24/2/2017. The plaintiff's prayer for specific performance was held to be outside limitation, whereas the alternate prayer for refund of consideration and compensation was held to be within limitation. Even after passing of order dtd. 24/2/2017 defendant failed to apply for setting aside 'no written statement' order. In the meantime, the application for temporary injunction filed by plaintiff came to be decided on 11/10/2021. The defendant thereafter filed application dtd. 18/11/2021 for setting aside 'no written statement' order by condoning delay and for taking written statement on record. That application has been rejected by the Trial Court by order dtd. 10/3/2022.

(3.) Appearing for petitioners Mr. Bolkar, learned counsel would contend that the delay in filing application for setting aside 'no written statement' order is required to be computed from 24/2/2017 when the application for rejection of the plaint under the provisions of Order 7 Rule 11 of the Code was decided. He would further submit that while computing the delay from 24/2/2017 onwards, the entire period of lockdown from 15/3/2020 upto 28/2/2022 is required to be excluded as per order of the Supreme Court dtd. 10/1/2022. He would therefore submit that upon exclusion of such period, the delay in filing application for setting aside 'no written statement' order would be hardly about 3 years which ought to have been condoned by the Trial Court. In support of his contentions Mr. Bolkar has relied upon the following judgments: