YASHODA BHIMRAO JADHAV Vs. MAHENDRA MANDANLAL GUNDECHA

JUDGEMENT

(1.) At the outset the learned counsel for the petitioners in both the petitions seeks deletion of the respondent Nos. 2 to 5 in Writ Petition No. 4161 of 2012 and the respondent Nos. 2 to 4 in Writ Petition No. 4160 of 2012. Leave granted. Amendment to be carried out by 7th March, 2013. Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

(2.) The above petitions arise out of the common order dated 03/01/2012 passed by the learned Civil Judge, Senior Division, Ratnagiri by which order the Application Exhibits 25 and 27 filed by the petitioners in the above petitions for setting aside the No. W.S. order passed against them on 16/04/2010 came to be rejected. The said rejection is on the ground that in terms of Rule 1 of Order VIII of the Code of Civil Procedure the said prayer of the petitioners cannot be granted as the period for filing the Written Statement mentioned therein is 30 days.

(3.) The petitioners in Writ Petition No. 4161 of 2012 are the original defendant Nos. 2 and 3, and the petitioner in Writ Petition No. 4160 of 2012 is the original defendant No. 5. The suit in question has been filed by the original plaintiff i.e. the respondent No. 1 herein in each of the above petitions claiming specific performance of the agreement dated 12/5/2007 and also seeking declaration in respect of the sale deed dated 29/6/2009 executed by the petitioner in Writ Petition No. 4160 with other defendants i.e. the defendant Nos. 1 to 3. It appears that in the said suit summons came to be served on the defendants on or about 17/11/2009. In so far as the defendant No. 5 is concerned, he appeared on 23/11/2009 and sought time to file Written Statement. The extended period in terms of Rule 1 of Order VIII of the Code of Civil Procedure for filing the Written Statement has expired on 17/2/2010. In view of the fact that the Written Statements were not filed by the said two sets of defendants, the Trial Court passed the order dated 16/4/2010 to the effect that the matter to proceed ex parte against the said defendants. It is (hereafter on 17/6/2010 that applications Exhibits 25 and 27 came to be filed by the said two sets of defendants being defendant No. 5 and the defendant Nos. 2 and 3. The case of the defendants in the said applications was that they were engaged in the proceedings in the appeal filed before the Maharashtra Revenue Tribunal (for short the MRT) and therefore the originals of the relevant papers which were required for filing of the Written Statements were with the lawyer who was appearing for them in the said Appeal before the MRT. According to the defendants the said proceedings were being heard by the MRT sometime in February 2010. The Trial Court did not accept the justification given by the defendants for not filing the Written Statements within the time stipulated and has by the impugned order rejected the said applications.