PUNDLIK LAXMAN KAWARASE Vs. BABAN KUNDLIK KAWARASE

JUDGEMENT

(1.) By this petition, the petitioner/defendant has challenged the order dated 12-04-2005, passed by the Civil Judge, senior Division, Chandrapur rejecting his application at Exh. 35, seeking permission to file written statement on record by'setting aside the order of proceeding further in Regular Civil suit No. 33/2002 without written statement. I have heard Advocate Joshi, for petitioners and advocate Potbhare, for respondents.

(2.) Grievance made by Advocate joshi, is that the dispute is between son and father and the father/defendant was under the impression that he had already filed written statement on record though what was filed was only a reply opposing the application for grant of temporary injunction. The said temporary injunction was rejected and thereafter, the case was fixed for written statement at that time it became clear that the written statement had not been filed. Because of old age and being illiterate they could not consult their Advocate and could not give him necessary instructions to file written statement, and hence the same could not be filed earlier on record. It is stated that this was on account of inadvertence oh the part of the petitioners. Advocate Joshi, contends that in such circumstances, particularly when written statement was nothing but reiteration of reply to the temporary injunction application, the court below could not have refused to take written statement on record. In support he places reliance upon the judgment of this Court, reported at 2006 (1) Mh. L. J. 745 : [2006 (2) ALL MR 332] (Hindurao Tukaram Shelke Vs. Prakash kallappa Awade) ; 2006 (1) Mh. L. J. 128 : [2006 (1) ALL MR 607] (Nandlal Vitthaldas and Co. Vs. Agricultural Produce Market committee) ; 2006 (1) Mh. LJ. 369: [2006 (1) ALL MR555] (Anil Kushabrao Phutane Vs. Madhukar Kushabrao Phutane and others) , and the judgment of Hon'ble Apex Court reported at 2006 (1) Mh. LJ. 178 (Sheikh salim Haji Vs. Kumar and others). He also points out that other judgment of Hon'ble Apex court reported at 2004 (4) Mh. LJ. 739 (Chintaman Kaklij Vs. Shivaji Bhausaheb gadhe and others).

(3.) As against this, Advocate potbhare, states that the suit was already proceeded without written statement and the respondent defendant have already filed their affidavit evidence on record. He further contends that the petitioner did not approach the court below with clean hands because the story of the defendant about not contacting the advocate is not correct. He states that the suit was filed on 9-7-2002, and the petitioner filed his reply opposing temporary injunction application on 3-8-2002. He further states that what is sought to be placed on record as written statement is same reply again without any alterations. According to him therefore, there was no need to give any instructions to advocate and this is not the matter which is either exceptional or extra ordinary so as to enable the petitioner/defendant to file written statement on record. He states that a false reason was placed for consideration before the trial court, and the trial court has rightly found that there is no cogent reason to exercise discretion in favour of such defendant. He contends that no case is therefore, made out for interference in writ jurisdiction.