Bombay High Court

MOHAMMED AQUIL MOHAMED ISMAIL QURESHI AND ORS.versusASHISH PATWARDHAN AND ORS.

Decided: 19 August 2026
Disposal: Disposed Off

Holding

The impugned order dated 18 August 2017 is set aside.

Summary

The petitioners challenged a 2017 order of the City Civil Court that allowed a draft Chamber Summons and directed deletion of several paragraphs from an Affidavit of Evidence. The petition argued that the trial court mistakenly treated those paragraphs as pleadings in Suit No. 6439 of 2003, whereas they actually pertained to an earlier Suit No. 1024 of 1972. The High Court noted that respondents were aware of the petition but failed to appear, and the matter had been pending for over nine years. It held that the premise of the impugned order was incorrect and set aside the order dated 18 August 2017. Consequently, the writ petition was allowed, the interim application disposed, no costs were awarded, and the trial court was directed to prioritize the disposal of the suit pending since 2003.

Issues considered

Whether the trial court erred in treating certain paragraphs as pleadings in the Chamber Summons of Suit No. 6439 of 2003.
Whether the writ petition can be decided despite the non‑appearance of respondents.
Whether the order allowing deletion of paragraphs from the Affidavit of Evidence should be set aside.

Subjects

Writ petition
Chamber Summons
Affidavit of Evidence
Procedural delay
Non‑appearance of parties
Set aside order
Expeditious disposal

Judgment

Vaishnavi                                               36-WP-12238-2017


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                     WRIT PETITION NO. 12238 OF 2017
                                 WITH
                  INTERIM APPLICATION NO. 2111 OF 2026
                                  IN
                     WRIT PETITION NO. 12238 OF 2017

Mohammed Aquil Mohamed Ismail
Qureshi and Ors.                                      ...Petitioners

                      V/s.

Ashish Patwardhan and Ors.                           ...Respondents
                                 ________________
Mr. Nainesh Amin a/w Ms. Aditi Karanjkar i/b N.N. Amin and Co., for
Petitioners.
                                 ________________

                                            CORAM: SANDEEP V. MARNE, J.

                                            DATED: 19 AUGUST 2026


P.C.:


1)          By this Petition, Petitioner challenges order dated 18 August 2017
passed by the learned Judge, City Civil Court, allowing draft Chamber
Summons and directing deletion of several paragraphs from the Affidavit
of Evidence.


2)          I have heard Mr. Amin, the learned counsel appearing for
petitioners.




                                    Page No.1 of 3
                                    19 August 2026
Vaishnavi                                              36-WP-12238-2017


3)          It appears that, in pursuance of notices issued by this Court,
Defendant No. 3 had appeared through an Advocate on 15 July 2026.
However, today none has appeared on behalf of Respondent No. 3.
Respondent No. 4 is already deleted. Service on Respondent No. 5 has
been effected private notice, which is apparent from the affidavit of
service dated 15 July 2026. However, none has appeared on behalf of
Respondent No. 5.
4)          Respondent Nos. 2 to 5 had tendered the draft Chamber
Summons in which the impugned order has been passed. It appears that
the same Advocate represents Respondent Nos. 2 to 5 before the City
Civil Court. The fact that the private notice is issued to Respondent No. 5
and an appearance has been made on behalf of Respondent No. 3 make it
clear that Respondent Nos. 2, 3 and 5 are aware of filing of the present
Petition. However, they have taken a chance of not appearing before this
Court. The Petition is pending since the year 2017. For over 9 years, the
decision of the suit in the meantime is withheld. In my view therefore, it
would be appropriate to proceed ahead with merits of the Petition
without awaiting appearance on the part of Respondent Nos. 2 to 5 any
further.


5)          Perusal of the impugned order would indicate that the Trial Court
has apparently treated paragraphs 4 (e), 4(j) (i)) to (ix) and paragraph 10
to be the pleadings in Chamber Summons/Notice of Motion filed in Suit
No. 6439 of 2003. The learned counsel for the Petitioner invites the
attention of the Court to the fact that the said events narrated in
paragraph 4 (e), 4(j) (i)) to (ix) and paragraph 10 relate to Chamber



                                    Page No.2 of 3
                                    19 August 2026
Vaishnavi                                                  36-WP-12238-2017


Summons filed in previous Suit No. 1024 of 1972. Thus, the very premise
on which the impugned order is passed appears to be incorrect.


6)          Accordingly, impugned order dated 18 August 2017 is set aside.
The Writ Petition is allowed in above terms. There shall be no order as to
costs. With disposal of the Writ Petition, nothing survives in the Interim
Application and the same is also disposed of.


7)          Considering the fact that the suit is pending since the year 2003,
the Trial Court shall accord due priority for expeditious disposal of the
same.




                                                     [SANDEEP V. MARNE, J.]




                                    Page No.3 of 3
                                    19 August 2026

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