SHIRLEY NARESH RAJWANIversusM/S.NENSEE CONSTRUCTION PVT.LTD.AND ORS

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION


                      WRIT PETITION NO.14208 OF 2022


      Shirley Naresh Rajwani                             ...Petitioner /
                                                         ...Plaintiff
               V/s.
      M/s.Nensee Construction Pvt. Ltd. & Ors.           ..Respondents


      Dr.Abhinav Chandrachud with Ms.Pragya, Mr.Ameya Khot i/b
      M/s.Legal Vision for the Petitioner.

      Mr.Henna P. Shah with Adv.Palak Ranka for Respondent Nos.1
      and 2.

                        CORAM : PRAFULLA S. KHUBALKAR, J.
                        DATE : 17TH JUNE, 2026.
      P.C. :-

      1.          Heard learned counsel for the petitioner as well as

      respondents.

      2.          Rule. Rule made returnable forthwith. Heard finally by

      consent of the parties.

      3.          By this petition under Article 227 of the Constitution

      of India, the petitioner has raised challenge to an order dated

      17th   February, 2020 passed by the Principal Judge, Greater


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Bombay allowing notice of motion no.1667 of 2019 in BCCC

Suit no.6034 of 2005, by which the defendants are permitted to

file their written statement.

4.        The petitioner is the original plaintiff, who has filed

the suit seeking specific performance of contract with respect to

the suit property. The suit was filed in the year 2005 and despite

service of notice upon the defendants, they failed to file the

written statement for a considerable period and the suit

remained pending. On 16th January, 2014, the trial court has

passed an order by observing that the defendants had failed to

file the written statement and directed that the suit be

transferred in the list of un-defended suits. As a result, on

account of non filing of the written statement by the defendants,

the suit proceeded without the written statement of the

defendants.

          Thereafter, the defendants had filed the notice of

motion on 13th March, 2019 and challenged the order dated 16 th

January, 2014 and sought for permission to file the written

statement on behalf of defendant nos.1 and 2. The plaintiff had


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opposed this application, however, by order dated 17 th February,

2020, the trial court has allowed the notice of motion. Feeling

aggrieved by this order, the original plaintiff     has filed the

instant petition.

5.        Dr.Abhinav Chandrachud, learned counsel for the

petitioner submitted that the impugned order allowing the notice

of motion is unsustainable as the court has condoned          the

unexplained and inordinate delay on the part of the defendants

in filing the application for setting aside no-written-statement

order. He submitted that the reasons mentioned in the affidavit

in support of the notice of motion clearly showed negligent

conduct on the part of the defendants and that the reasons put

forth about finalization and notarization of the written statement

by the earlier advocate, are improbable and unexplained. He

submitted that the trial court ought to have inferred that the

defendants failed to give any satisfactory explanation to justify

the inordinate delay in filing the written statement in time

particularly when their lawyer was attending the matter. He

submitted that the reasons referring to change of advocates


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repeatedly, are putforth only to cover up the lapses on the part

of the defendants and in absence of any sufficient cause, the

notice of motion deserves to be rejected.

6.        In support of this submission, he placed reliance on the

judgment of the Hon’ble Supreme Court in the matter of Atcom

Technologies Ltd. vs. Y.A. Chunawala & Co. reported in (2018) 6

SCC 639, judgment of co-ordinate bench of this court in the

matter of Rupchand Rajmalji Jain vs. Jayantilal Kalyanji Gada of

Mumbai and Ors., reported in 2018 SCC OnLine Bom. 745 and

Vasant Vithal Gawand vs. Shantaram Tukaram Gawand (since

deceased) by his L.Rs. Prakash Shantaram Gawand, reported in

2016(1) Mh.L.J. 89.

          By pointing out the legal position from the judgment

of the Hon’ble Supreme Court in the matter of Atcom

Technologies Ltd. (supra), he submitted that despite the

defendants failed to make out any exceptional case, the trial

court   has   erroneously   exercised   its   discretion,   without

considering justness of the cause put forth. By relying on the

position of law as laid down in Rupchand Rajmalji Jain (supra),


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he submitted that the reasons put forth by the defendants

blaming their earlier counsel cannot be considered as sufficient

circumstance for allowing the defendants to file the written

statement belatedly. Further, by relying upon the judgment in

the matter of Vasant Vithal Gawand (supra), he submitted that

the conduct of the defendants showed gross negligence as they

had engaged an advocate earlier and were aware about need of

filing the written statement in time particularly when they had

attended the matter.

7.        Per contra, Advocate Ms.Henna Shah, learned counsel

for the respondents vehemently opposed the petition and

justified the impugned order. She submitted that the defendants

had candidly stated the reasons in the affidavit in support of the

notice of motion, which are rightly considered by the trial court.

She submitted that the defendants had stated on affidavit that

the written statement was in fact provided by them to finalize

and get notarised which was then handed over to the office of

their earlier advocate, Mr.Negandhi for filing before this Court.

It is stated that after the matter was transferred from this Court


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to the trial court on account of pecuniary jurisdiction there was

change of lawyer and new advocate was not diligent              in

pursuing the matter. It is also stated that therefore the

defendants   remained    under   impression   that   the   written

statement was filed and after the change of their counsel, it was

revealed that the written statement was not filed in time and the

order dated 16th January, 2014 was already passed against the

defendants. She submitted that in view of the specific reasons

mentioned in the notice of motion, the defendants had made

out sufficient cause for getting the order of "no written

statement" set aside and as such no indulgence is warranted with

the impugned order.

8.        In support of her submissions, she placed reliance on

the judgment of the Hon’ble Supreme Court in the matter of (i)

Sheo Raj Singh (Deceased) through L.Rs. & Ors. vs. Union of

India & Ors, reported in MANU/SC1098/2023, (ii) The

Secretary, Department of Horticulture, Chandigarh & Ors. vs.

Raghu Raj, reported in     MANU SC8167/2008, (iii)Collector,

Land Acquisition, Anantnag & Ors. vs. Katiji & Ors., reported in


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MANU/0460/1987 and (iv) Easha Bhattacharjee vs. Managing

Committee of Raghunathpur Nafar Academy & Ors., reported in

MANU/SC/0932/2013.

          By pointing out the observations of the Hon’ble

Supreme Court       in the matter of Sheo Raj Singh (Deceased)

through L.Rs. & Ors. (supra) she submitted that discretionery

order passed by the trial court in the instant matter is based on

the reasons recorded therein and hence no interference is

warranted. By pointing out legal position         from the other

judgments she submitted that the trial court is justified in

allowing the notice of motion, as the defendants had made out a

sufficient cause.

9.          In the backdrop           of these submissions, rival

contentions fall for my consideration.

10.       It has to be noted that the trial court has allowed the

notice of motion by     elaborately    considering the contentions

canvassed by both the parties. By the impugned order, the trial

court has exercised discretion in favour of the defendants and

allowed the notice of motion, subject to costs of Rs.10,000/- to


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be paid to the plaintiff. Further, it has to be noted that the

defendants have mentioned elaborate reasons in their affidavit

and have stated the circumstances for not filing the written

statement in time. It is crucial to note that the defendants have

specifically mentioned the names of the advocates, who were

engaged by them for contesting the suit. Thus, by considering

the contentions of the parties, the trial court has found this case

to be a fit case for exercise of discretion to allow the defendants

to file the written statement.

11.         It has also to be noted        that although the suit

summons was served upon the defendants in the year 2005, the

order of no written statement was passed by the trial court on

16th January, 2014. It appears that thereafter the suit remained

at that stage till the defendants filed the notice of motion on 13 th

January, 2019 seeking permission to file the written statement

on record. Thus, it appears that even though "no written

statement" order was passed on 16 th January, 2014, the plaintiff

has not led evidence and thus since the suit remained at the

same stage, the plaintiff cannot claim any prejudice on account


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of permitting the defendants to file the written statement.

12.        The position of law is well settled, that procedure is

handmaid of justice and denial of an opportunity to the

defendants to file the written statement would deprive them to

contest the suit    on merits. It is desirable      that the suit is

contested on merits and decided finally so that the controversy

is put at rest on merits. Further, it is also settled position of law

that the provisions of order VIII Rule 1 of Civil Procedure Code

are held to be directory and by considering the need to balance

rights and equities of the parties, the courts are entitled to pass

appropriate discretionary orders. As such exercise of discretion

by the trial court in the instant case, if tasted from these angles, I

do not find any perversity with the impugned order passed by

the trial court.

13.        Although counsel for the petitioner has pointed that

the defendants had not filed the written statement for years

together since 2005, it has to be noted that the defendants had

candidly stated in their affidavit that they were under bonafide

belief that the written statement was filed        by their    earlier


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counsel Advocate Negandhi. Pertinent to note that the

defendants have stated in detail the reasons for engaging the

new advocates which shows the conduct of an ordinary litigant.

The reasons put forth in the affidavit does not appear to be

mala-fide and worth rejecting. Although, the defendants had

appeared in the suit since 2005 but carried a bona-fide belief

about filing of the written statement and therefore they need

not be penalized by depriving them of an opportunity to defend

the suit on merits. In view of these aspects, the contentions of

the petitioner cannot be accepted.

14.       A perusal of the impugned order shows that the trial

court has recorded the reasons while exercising the discretion in

allowing the notice of motion. The impugned order appears to

be an attempt to balance the rights and equities of the parties

and I do not find any perversity warranting indulgence under

Article 227 of the Constitution of India.

15.       Hence the petition deserves to be dismissed and

accordingly, the same is dismissed with no order as to costs.


                                 (PRAFULLA S. KHUBALKAR, J.)

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