Bombay High Court
Pramila Dattatray Shinde And Anr vs Tukaram Laxman Mane Through L/H And Ors on 11 November, 2019
Author: A. M. Badar
Bench: A. M. Badar
13-WP-13719-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13719 OF 2018
PRAMILA DATTATRAY SHINDE AND ANR. )...PETITIONERS
V/s.
TUKARAM LAXMAN MANE (since deceased) )
Through Legal Heirs )
PANDHARINATH TUKARAM MANE & ORS. )...RESPONDENTS
Shri.Vaibhav Gaikwad, Advocate for the Petitioner.
Shri.R.V.Bansode, Advocate for Respondent Nos.1A and 1B.
CORAM : A. M. BADAR, J.
DATE : 11th NOVEMBER 2019
P.C. :
1 This is a petition by legal representatives of deceased
defendant no.1. By this petition, petitioners, who happen to be
defendant nos.1A and 1B, being legal representatives of deceased
defendant no.1, who was their father, are challenging the order
dated 26th March 2018 passed by the learned trial court below
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their application Exhibit 195. This application was filed for
permitting them to file their written statement on record by
setting aside the order of 'no written statement.'
2 Heard the learned counsel appearing for petitioners
/defendant nos.1A and 1B. He argued that within a period of
ninety days from service of summons on petitioners/legal
representatives of deceased defendant no.1, no written statement
came to be filed against them and thereafter, they applied for
taking their written statement on record. According to the learned
counsel for petitioners/defendant nos.1A and 1B, the written
statement ought to have taken on record by the learned trial
court.
3 The learned counsel for respondents/original plaintiffs
vehemently opposed the petition by contending that the suit is for
partition and separate possession. Suit property is in possession of
defendants. Therefore, defendants are trying to prolong the suit
filed in the year 1996 by adopting dilatory tactics. There was no
sufficient cause for filing the written statement belatedly. The
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learned counsel further argued that the original defendant no.1
had already filed his written statement and therefore, his
successors / legal representatives ought not to have filed any
separate written statement. It is pointed out that the written
statement sought to be filed by defendant nos.1A and 1B is replica
of the original written statement filed by the deceased defendant
no.1 and therefore, the learned trial court has rightly rejected the
application.
4 I have considered the submissions so advanced and
also perused the impugned order. The learned trial court has
observed that the reasons stated for taking the written statement
on record are vague and are not reasonable. It is further observed
that original defendant no.1 had already filed the written
statement, and therefore, his legal representatives are bound by
pleadings of their predecessor.
5 Suit summons were served on petitioners/defendant
nos.1A and 1B on 13th November 2017 and 9th November 2017
respectively. Record made available shows that they had
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appeared on 27th November 2017 before the learned trial court
and applied for grant of time to file written statement. It is seen
that, on this very application itself, time was granted as a last
chance. Reason cited in the first application itself is to the effect
that important information and documents are awaited.
Thereafter, on each dates, defendant nos.1A and 1B used to apply
for time to file written statement. Their very next application
came to be rejected on 5th February 2018. On 6th February 2018,
the learned trial court passed an order below Exhibit 1 thereby
directing the suit to proceed without written statement of
defendant nos.1A and 1B. Then, on the very next date, i.e. on 26 th
February 2018, an application for permission to file written
statement came to be moved by petitioners/defendant nos.1A and
1B. Averments in the said application are to the effect that
original defendant no.1 had not informed defendant nos.1A and
1B about pendency of the suit or subject matter of the suit. The
suit is an old one and therefore, it was necessary for defendant
nos.1A and 1B to get information and documents for drafting the
written statement. It is further averred by defendant nos.1A and
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1B that they were unable to obtain old documents and
information within the prescribed time limit and therefore, they
could not file the written statement on record. Therefore, they
filed this application at Exhibit 195 for setting aside the 'no
written statement' order and for permitting them to file the
written statement on record. However, the said application came
to be rejected on 26th March 2018 with reasons as stated by this
court in the foregoing paragraphs.
6 The suit is for partition and separate possession. It
was instituted in the year 1996. Petitioners were impleaded as
legal representatives of the original defendant no.1 in November
2017 and they moved an application in February 2018 itself for
accepting their written statement on record by setting aside the
'no written statement' order. On an earlier occasion, they had
applied for grant of time to file written statement with the reason
that documents and information are not available with them. It is,
thus, seen that cogent reasons were given by the newly added
defendants for either adjourning or applying for taking their
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written statement on record. As pointed out by the learned
counsel for respondents/plaintiffs, the suit itself is of the year
1996. Petitioners/newly added legal representatives are married
daughters of deceased defendant no.1, and as such, it was not
expected of them to be aware about the pendency of the suit for
partition and separate possession between their uncles and
deceased father. Thus, the learned trial court ought to have
accepted the written statement of the legal representatives of
deceased defendant no.1 on record, in the light of sufficient and
cogent reasons given by them. Similarly, the learned trial court
erred in holding that legal representatives are bound by pleadings
of their predecessor. Once they are arraigned as defendants, it is
their choice to file their written statement. The impugned order,
as such, cannot be sustained, and therefore the order :
ORDER
i) The impugned order dated 26th March 2019 passed below the application Exhibit 195 is quashed and set aside.
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ii) The application at Exhibit 195 is allowed and written statement of defendant nos.1A and 1B is directed to be taken on record by setting aside the 'no written statement' order.
iii) Considering the fact that the suit is of the year 1996, the learned trial court is directed to expedite hearing of the said suit and dispose it off within a period of eight months from the date of receipt of this order.
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