BHARAT KAPOORCHAND JAINversusPRAFUL VRAJPAR MARU AND ANR

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                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                         WRIT PETITION NO.11419 OF 2026

                      Bharat Kapoorchand Jain                          ...   Petitioner
                            versus
                      Praful Vrajpar Maru and Anr.                     …     Respondents

                      Mr. Nishant Sasidharan with Mr. Bhavik Lalaln, Mr. Nakul Jain, Ms. Gauri
                      Mestha i/by L.J. Law, for Petitioner.
SWAROOP
SHARAD                                  CORAM:       N.J.JAMADAR, J.
PHADKE
Digitally signed by
SWAROOP SHARAD
PHADKE                                  DATE :       11 SEPTEMBER 2026
Date: 2026.09.16
20:14:40 +0530


                      ORDER :

                      1.    Heard the learned Counsel for the Petitioner.

                      2.    This petition impugns the order dated 9 July 2026 passed by the

                      learned Civil Judge, Bhiwandi, whereby the application preferred by the

                      Petitioner – Defendant for setting aside “no WS” order dated 26 October 2016

                      came to be rejected.

                      3.    The Respondents instituted a suit, now numbered as SCS No.187 of

                      2023, against the Petitioner seeking possession of the suit flat purportedly

                      sold under the sale deed dated 22 June 2006, allegedly executed by the

                      Petitioner in favour of the Respondents. The Petitioner claimed that, prior

                      thereto, the Petitioner has instituted SCS No.715 of 2011, now numbered as

                      Suit No.120 of 2012 against the Respondents seeking a declaration that the

                      said sale deed dated 22 June 2006 was illegal, null and void and not binding



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upon the Petitioner. In the suit instituted by the Respondents, the Petitioner –

Defendant was served with the writ of summons on 5 April 2016. Though, the

Petitioner appeared on 26 April 2016 and sought time to engage an Advocate,

the Petitioner did not file written statement, and, thus, eventually, on 26

October 2016, the trial Court directed that the suit shall proceed without

written statement of the Defendants.

4.    On 23 December 2024, the Defendant filed an application seeking

permission to file written statement by setting aside no WS order along with

the application for condonation of 2194 days delay in taking out the said

application and 3146 days delay in filing the written statement.

5.    By the impugned order, the learned Civil Judge rejected the application

observing, inter alia, that no justifiable reason was ascribed for the

condonation of delay and permitting the Defendant to file written statement

and the endeavour of the Defendant to put the blame at the doorstep of the

Advocate, was unworthy of acceptance as no Vakalatnama was filed till 13

November 2024.

6.    Mr. Sasidharan, learned Counsel for the Petitioner, submitted that the

learned Civil Judge took a very hyper-technical view of the matter. In the

application, the Defendant No.1 had categorically stated that he had entrusted

the brief to the Advocate for preparing and filing the written statement.

However, due to the inadvertence on the part of the junior Advocate of Mr.


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Abhay Kathavale and the ill-health of Mr. Kathavale and adverse impact on

the financial position of Defendant No.1 due to demonitisation, the written

statement could not be filed. The assertions in the application were also

supported by an affidavit affirmed by Advocate Kathavale. In these

circumstances, the Defendant No.1 could not have been deprived of the

opportunity to contest the suit on merits, on account of the negligence and

inadvertence on the part of the Advocate, whom the former had entrusted the

brief. The learned Civil Judge lost sight of the cardinal principle that a party

should not suffer on account of the default or negligence on the part of the

Advocate to whom such a party entrust the brief.

7.    The aforesaid submissions simply fail to account for the gross and

inordinate delay in filing the written statement. The Applications were filed

almost 8 years after the No WS order was passed by the learned Civil Judge.

If the averments in the application are perused, one gets an impression that,

instead of an explanation for delay, the Defendant No.1 had offered a litany of

excuses. All sorts of reasons were sought to be ascribed, which plainly fall

short of explanation and squarely fall in the category of excuses.

8.    The alleged inaction, inadvertence or negligence on the part of the

concerned Advocate, which was sought to be forcefully canvassed by Mr.

Sasidharan, does not advance the cause of the submission. Firstly, it is a

matter of record that the concerned Advocate did not file vakalatnama till 13


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November 2024, though the Defendant had appeared before the trial Court in

response to the service of writ of summons on 26 April 2016 itself. Secondly,

it is pertinent to note that, the Defendant was pursuing a prior suit instituted by

him against the Respondents, being RCS No.120 of 2012.                    It defies

comprehension that, the Defendant could pursue his own suit and fail to

defend the instant suit for over eight years on account of the purported

inadvertence or negligence on the part of the Advocate when the suits were

essentially cross suits.

9.       The broad submission canvassed by Mr. Sasidharan that a party should

not be made to suffer adverse consequences of the inaction, inadvertence or

negligence on the part of the chosen Advocate, cannot be accepted

unreservedly. In the case of Rafiq and Anr. V/s. Munshilal and Anr. 1 the

Supreme Court considered the question whether it would be proper that the

party should suffer for the inaction, deliberate omission or misdemeanour of

his agent, and answered the said question in the negative. The Supreme

Court observed that, the Court cannot be a party to an innocent party

suffering injustice merely because his chosen Advocate defaulted.

10.      It is pertinent to note that, in the subsequent decisions, the Supreme

Court has clarified the import of the aforesaid decision in the case of Rafiq

and Anr. (supra). The Supreme Court has cautioned against the condonation


1    (1981) 2 SCC 788

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of delay and lapses on the part of a party on the ground that there was

inaction, omission or negligence on the part of the Advocate. In the case of

Salil Dutta V/s. T.M. and M.C.Pvt.Ltd.2, the Supreme Court expounded the

position as under :

                “8. The advocate is the agent of the party. His acts and
                statements, made within the limits of authority given to him,
                are the acts and statements of the principal i.e. the party
                who engaged him. It is true that in certain situations, the
                Court may, in the interest of justice, set a side a dismissal
                order or an ex-parte decree notwithstanding the negligence
                and/or misdemeanour of the advocate where it finds that
                the client was an innocent litigant but there is not such
                absolute rule that a party can disown its advocate at any
                time and seek relief. No such absolute immunity can be
                recognised. Such an absolute rule would make the working
                of the system extremely difficult. The observations made in
                Rafiq must be understood in the facts and circumstances of
                that case and cannot be understood as an absolute
                proposition. As we have mentioned hereinabove, this was
                an on-going suit posted for final hearing after a lapse of
                seven years of its institution. It was not a second appeal
                filed by a villager residing away from the city, where the
                Court is located. The defendant is also not a rustic ignorant
                villager but a private limited company with its head-office at
                Calcutta itself and managed by educated businessmen
                who know where their interest lies. It is evident that when
                their applications were not disposed of before taking up the


2   (1993) 2 SCC 185

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                suit for final hewing they felt piqued and refused to appear
                before the court. May be, it was part of their delaying
                tactics as alleged by the plaintiff. May be not. But one thing
                is clear they 'chose to non-cooperate with the court. Having
                adopted such a stand towards the Court, the defendant has
                no right to ask its indulgence. Putting the entire blame upon
                the advocate and trying to make it. out as if they were
                totally unaware of the nature or significance of the
                proceedings is a theory which cannot be accepted and
                ought not to have been accepted.”
                                                  (emphasis supplied)


11.     The aforesaid position was reiterated in the case of Rajneesh Kumar

Vs Ved Prakash3 in the following words :

                “10.   It appears that the entire blame has been thrown on
                the head of the advocate who was appearing for the
                petitioners in the trial court. We have noticed over a period
                of time a tendency on the part of the litigants to blame their
                lawyers of negligence and carelessness in attending the
                proceedings before the court. Even if we assume for a
                moment that the concerned lawyer was careless or
                negligent, this, by itself, cannot be a ground to condone
                long and inordinate delay as the litigant owes a duty to be
                vigilant of his own rights and is expected to be equally
                vigilant about the judicial proceedings pending in the court
                initiated at his instance. The litigant, therefore, should not
                be permitted to throw the entire blame on the head of the
                advocate and thereby disown him at any time and seek


3   2024 SCC Online SC 3380

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               relief.”                                 (emphasis supplied)


12.    A profitable reference can be made to another decision in the case of

Nitin Mahadeo Jawale and Ors Vs Bhaskar Mahadeo Mutke 4 wherein the

Supreme Court has again cautioned against condoning the delay or setting

aside the dismissal order by placing entire blame on the Advocates.

Paragraphs 6 to 8 are material and hence extracted below :

               “6. We have noticed over a period of time the growing
               tendency on the part of the litigants in throwing the entire
               blame on the head of the advocate. Not only this, we have
               come across cases where the concerned advocate has
               filed an affidavit in favour of his client(s) saying that he
               was unable to attend the proceedings due to some
               personal reasons difficulties thereby facilitating the
               litigant to get the delay condoned.
               7. Even if we assume for a moment that the concerned
               lawyer was careless or negligent, this, by itself, cannot be a
               ground to condone long and inordinate delay as the litigant
               owes a duty to be vigilant of his own rights and is expected to
               be equally vigilant about the judicial proceedings pending in
               the court initiated at his instance.
               8. The litigant, therefore, should not be permitted to throw the
               entire blame on the head of the advocate and thereby disown
               him at any time and seek relief.”        (emphasis supplied)


13.    In the light of the aforesaid caution administered by the Supreme

Court , if the affidavit filed by Advocate Kathavale is perused, it appears that
4   2024 INSC 902

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the endeavour was to facilitate the Petitioner to wriggle out of the situation.

Simply put, the concerned Advocate has not subscribed to the version of the

Petitioner to the extent desired by the Petitioner.           The assertions in the

application are not substantiated by the affidavit of the concerned Advocate.

14.     The upshot of aforesaid consideration is that, the gross and inordinate

delay did not deserve to be condoned as a matter of course. It is true, the

provisions contained in Order VIII Rule 1 of CPC, prescribing the time limit for

filing the written statement have been construed to be directory and not

mandatory.       However, the length of delay does matter.             If a huge and

inordinate delay is condoned as a matter of course and the Defendant is

permitted to file written statement, the very object of prescribing the time limit

for filing the written statement would be completely defeated.

15.     A useful reference,      in this context, can be made to a three-Judge

Bench judgment of the Supreme Court in the case of R. N. Jadi & Brothers

& Ors. Vs. Subhashchandra5, wherein the approach of the Court in the

matter of condoning the delay in filing the written statement was expounded.

The observations of Hon’ble Justice P. K. Balasubramanyan, in the

supplementary opinion, are instructive and, hence, extracted below :-

                “14. It is true that procedure is the handmaid of justice. The
                court must always be anxious to do justice and to prevent
                victories by way of technical knock-outs. But how far that

5   (2007) 6 SCC 420

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      concept can be stretched in the context of the amendments
      brought to the Code and in the light of the mischief that was
      sought to be averted is a question that has to be seriously
      considered. I am conscious that I was a party to the decision
      in Kailash vs. Nankhu and others (2005 (4) SCC 480) which
      held that the provision was directory and not mandatory. But
      there could be situations where even a procedural provision
      could be construed as mandatory, no doubt retaining a
      power in the court, in an appropriate case, to exercise a
      jurisdiction to take out the rigor of that provision or to
      mitigate genuine hardship. It was in that context that in
      Kailash vs. Nankhu and others (supra) it was stated that the
      extension of time beyond 90 days was not automatic and
      that the court, for reasons to be recorded, had to be satisfied
      that there was sufficient justification for departing from the
      time limit fixed by the Code and the power inhering in the
      court in terms of Section 148 of the Code. Kailash (supra) is
      no authority for receiving written statements, after the expiry
      of the period permitted by law, in a routine manner.
      15. A dispensation that makes Order VIII Rule 1 directory,
      leaving it to the courts to extend the time indiscriminately
      would tend to defeat the object sought to be achieved by the
      amendments to the Code. It is, therefore, necessary to
      emphasize that the grant of extension of time beyond 30
      days is not automatic, that it should be exercised with
      caution and for adequate reasons and that an extension of
      time beyond 90 days of the service of summons must be
      granted only based on a clear satisfaction of the justification
      for granting such extension, the court being conscious of the
      fact that even the power of the court for extension inhering


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             in Section 148 of the Code, has also been restricted by the
             legislature. It would be proper to encourage the belief in
             litigants that the imperative of Order VIII Rule 1 must be
             adhered to and that only in rare and exceptional cases, will
             the breach thereof will be condoned. Such an approach by
             courts alone can carry forward the legislative intent of
             avoiding delays or at least in curtailing the delays in the
             disposal of suits filed in courts. The lament of Lord Denning
             in Allen v. Sir Alfred McAlpine & Sons [(1968) 1 All E.R. 543]
             that law's delays have been intolerable and last so long as
             to turn justice sour, is true of our legal system as well.
             Should that state of affairs continue for all times?”
                                                       (emphasis supplied)


16.   If the facts of the case are appraised on the aforesaid touchstone, this

Court does not find any legal infirmity in the impugned order so as to warrant

interference in exercise of the supervisory jurisdiction.

17.   The Writ Petition, thus, stands dismissed.




                                                       ( N.J.JAMADAR, J. )




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