Bombay High Court

MOHD NAJAM S/O MOHD AZAMversusCHANDRAKALABAI W/O HIRA SWAMI B. CHOUDHARI

Disposal: DISMISSED
Bench: SHAILESH P BRAHME

Holding

The appellate court held that the trial court’s order proceeding without a written statement was valid and could not be set aside, leading to dismissal of the appeal.

Summary

The appellant, Mohd. Najan, filed a special civil suit for specific performance of a sale agreement. The respondent, ChandraKalabai, failed to file a written statement despite multiple adjournments and later applied to set aside the order allowing the suit to proceed without her statement, which the trial court rejected. The respondent claimed medical illness as a reason for non‑participation, while the appellant argued that the respondent’s conduct was casual and that the trial court acted reasonably. The appellate court examined whether the order proceeding without a written statement could be disturbed and considered the balance of equities, concluding that the trial court’s decision was proper. Consequently, the appeal was dismissed, the original decree upheld, and the respondent was ordered to pay additional costs and file a written statement on a specified date.

Issues considered

Whether the trial court’s order to proceed with the suit without a written statement can be set aside.
Whether the appellate court may interfere with the trial court’s decree given the respondent’s failure to file a written statement and attend proceedings.
Whether additional costs may be imposed on the respondent for non‑compliance with procedural orders.

Subjects

specific performance
written statement
procedural default
civil procedure
costs
equity
remand order

Judgment

2026:BHC-AUG:6198
AO 11 25.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

APPEAL FROM ORDER NO. 11 OF 2025

MOHD. NAJAN S/O MOHD AZAM
VERSUS
CHANDRAKALABAI W/O HIRA SWAMI B. CHOUDHARI
…
Advocate for Appellant : Mr. G.R. Syed
Advocate for Respondent : Mr. M.M. Parghane
...
CORAM : SHAILESH P. BRAHME, J.

RESERVED ON : 04.02.2026
PRONOUNCED ON : 12.02.2026
PER COURT :

Heard both sides. Being aggrieved by order of remand passed in
Regular Civil Appeal No. 36/2023, the appellant-original plaintiff has
preferred this appeal. His Special Civil Suit No. 182/2022 for specific
performance of contract was decreed by the Trial Court.

2. Both the counsels have canvassed their submissions in furtherance of
substantial questions of law framed by this Court.

3. The learned counsel for appellant submits that respondent did not file
written statement despite extending her opportunity. No written statement
was annexed along with application (Exh. 22). She did not challenge order
dated 13.01.2023 passed below Exh. 22 rejecting her application. Learned
counsel has adverted my attention to Roznama to show that trial court was
reasonable and fair in deciding the suit. It is submitted that the lawyer
representing the respondent did not turn up in the present case but
appearing in other matters.

4. Per contra, learned counsel Mr. Parghane submits that respondent was
ailing and she was taking treatment. The Trial Court proceeded with undue

1/3
AO 11 25.odt

haste. One opportunity should be given to the respondent to contest the
suit.

5. The suit for specific performance of contract was founded on
agreement to sell at Exh. 25, which was further corrected on 11.10.2021 by
instrument at Exh. 34. The respondent had appeared in the Trial Court
through her attorney who was her son. She did not file written statement.
The roznama produced on record reveals that she appeared on 14.11.2022
through lawyer advocate Mr. U.S. Misal and sought time for filing written
statement. Matter was adjourned to 23.11.2022. It was further adjourned
to 14.12.2022 for filing written statement. On 14.12.2022 order was passed
below Exh. 1 that suit to proceed without written statement.

6. The respondent submitted application (Exh. 22) on 13.01.2023 for
setting aside no written statement order. It was rejected on 13.01.2023.
Pertinently, a copy of the written statement was not accompanying
application Exh. 22. No endeavour has been made to challenge order passed
below Exh. 22. Thereafter, matter was pending for couple of dates during
which the plaintiff led his evidence. The suit was ultimately decreed on
13.04.2023.

7. It is evident that approach of the respondent is very casual. She did
not participate in the proceedings. The evidence of applicant was not
challenged by her or her advocate. Her advocate was attending the other
matters. The extracts of Roznama showing that he was attending the Court
from 01.01.2023 to 13.01.2023 cannot be doubted. This crucial aspect of
the matter has not been dealt with by the lower Appellate Court.

8. The Appellate Court is swayed away by the medical papers of the
respondent. She was being represented by her attorney, who was non else
than her son. No reason is assigned as to what prevented the attorney to
prosecute the matter diligently. Despite these facts, I am not inclined to
interfere with the impugned judgment and order. The stakes are involved in
2/3
AO 11 25.odt

the matter. Equities can be balanced by imposing heavy costs upon the
respondent. The matter was decided by the Trial Court on 13.04.2023. I
find that appellate Court has adopted pragmatic approach. The substantial
questions of law need to be answered against the appellant.

9. Appeal from Order is dismissed.

10. Impugned judgment and order shall stand confirmed with following
modification:

(a) Respondent shall pay additional costs of Rs.
20,000/- (Rs. Twenty Thousand only) within period of
three weeks from the date of appearance of parties before
the Trial Court which shall be condition precedent.

(b) Both parties shall appear before the Trial Court on
20.02.2026.

(d) If respondent fails to file written statement, the
decree passed by the Trial Court shall stand confirmed, by
quashing impugned order of remand.

( SHAILESH P. BRAHME, J.)

mkd/-

3/3

Continue reading with your account

Checking your session…