Bombay High Court

MALLINATH SHARNAYYA SWAMIversusPRAMOD DIGAMBAR JADHAV

Disposal: DISPOSED OFF

Holding

Both impugned orders dated 08‑06‑2017 and 29‑11‑2022 are quashed and set aside, and the matters are remitted to the trial court for fresh hearing in accordance with law.

Summary

The petitioner sought to quash two orders passed by the Junior Civil Judge in a summary civil suit: one allowing the respondent to file a written statement after condoning a 22‑day delay, and another rejecting the respondent's application for documents. The petitioner argued that the trial court failed to impose conditions for security as required by the precedent in Oil and Natural Gas Corpn Ltd. v. State Bank of India and ignored pleadings showing the documents were already filed with the plaint. The respondent contended that the trial court acted within its jurisdiction and that the petitioner’s interests were protected. The High Court held that both orders were procedurally defective, partially allowed the petitioner’s prayers, quashed the impugned orders, and remitted the matters to the trial court for fresh consideration. The writ petition was consequently disposed of.

Issues considered

Whether the trial court erred in condoning delay for filing the written statement without imposing appropriate conditions.
Whether the trial court should have required the respondent to deposit security in accordance with the Oil and Natural Gas Corpn Ltd. precedent.
Whether the order rejecting the respondent's application for documents was justified given the documents were already annexed to the plaint.
Whether the trial court failed to consider the pleadings and annexures in its orders.

Subjects

summary civil suit
condonation of delay
written statement
quash order
discovery of documents
pleadings
remand
Civil Procedure Code
procedural law

Judgment

2026:BHC-AUG:41901
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.

25 WRIT PETITION NO.2771 OF 2023

Mallinath s/o. Sharnayya Swami
Age : 75 years, Occu : Business,
Prop. M/s. M.S. Swami,
Jakekur / Chowrasta, Omerga, … Petitioner
Tq. Omerga, Dist. Osmanabad (Orig. Plaintiff)
Versus
Pramod s/o. Digambar Jadhav,
Age : 43 years, Occu : Business,
R/o. Dongargaon, Post. Ramling
Mudgad, Tq. Nilanga, Dist. Latur … Respondent
(Orig. Defendant)
…..
Shri. Shailendra S. Gangakhedkar, Advocate for the Petitioner
Shri. S. P. Urgunde, Advocate for the Respondent
…..

CORAM : AJIT B. KADETHANKAR, J.
Dated : SEPTEMBER 07, 2026

FINAL ORDER :-

. Heard the learned Advocates appearing for both the sides.

2. Considering the short issue raised in this Writ Petition, I deem it

appropriate to dispose of the Petition at admission stage by consent of

the learned Advocates for both the sides.

3. In the Petition the Petitioner has put forth the following

substantive prayers:

“B) By an order of this Hon’ble Court, kindly quash and
set aside the impugned order passed below Exh.22 in
Summary Civil Suit No.1/2016 on 08.06.2017 and
consequently the application below exh.22 may kindly be
2

rejected.
C) By an order of this Hon’ble Court, kindly quash and
set aside the impugned order passed below Exh.60 in
Summary Civil Suit No.1/2016 on 29.11.2022 and
consequently the application below exh.60 may kindly be
rejected.”

4. SUBMISSIONS AND CONSIDERATION :-

4.1. So far as the prayer clause ‘B’ is concerned, Shri. Shailendra S.

Gangakhedkar, the learned Advocate for the Petitioner (Orig. Plaintiff)

would submit that in the summary civil suit the Respondent (Orig.

Defendant) failed to file his defence within the stipulated period and

therefore, his right to file Written-statement got forfeited. He would

submit that thereafter the Respondent filed application seeking

condonation of 22 days delay and the same was allowed.

4.2. Thereafter, the Defendant filed Application below Exh.22 seeking

permission to file Written-Statement. The same was also allowed by the

learned Trial Court, however without imposing appropriate condition.

4.3. Mr. Gangakhedkar would submit that the learned Trial Court

passed the cryptic order directing the Defendant to pay the due amount

within one (1) month, if the suit stands decreed. It is further submitted

that in view of the law laid down by this Court in the matter of Oil and

Natural Gas Corpn Ltd vs. State Bank of India reported in AIR 2002

BOMBAY 32 in Paragraph No.12, it was incumbent on the part of the
3
Trial Court to impose some conditions upon the Defendant to deposit

the claim amount or at least a portion thereof.

4.4. Mr. Gangakhedkar would submit that obviously disbursement of

the such amount would depend on the merits of the case raised by the

Plaintiff.

4.5. Lastly, it is prayed that, in view of this, the matter be relegated

back to the learned Trial Court to pass an appropriate order.

4.6. Shri. S. P. Urgunde, the learned Advocate for the Respondent

would object such prayer. He would submit that the Trial Court has

exercised the jurisdiction vested in it. He would further submit that the

necessary interest of the Petitioner - Plaintiff is protected by the

impugned order and hence this prayer may not be entertained.

4.7. I find that the prayer clause ‘B’ advanced by Shri. Gangakhedkar,

the learned Advocate for the Petitioner is moderate one in view of the

law laid down by this Court in Oil and Natural Gas Corpn Ltd (supra).

4.8. So far as the prayer clause ‘C’ is concerned, Shri Gangakhedkar,

the learned Advocate for the Petitioner has submitted that the

documents sought by the Defendant are already filed by the Plaintiff

with the plaint and those are part of the suit itself. It is pointed out that
4
the pleadings in the suit which would demonstrate that those documents

are referred in the plaint and are produced by the Plaintiff with the

plaint. It is also submitted that in view of this, the impugned order

dated 29.11.2022 is also not justified. It appears that, the learned Trial

Court has not taken into consideration the pleadings which show that

the documents in question are filed by the Plaintiff along with the plaint.

It is submitted that the impugned order also be quashed and set aside

and the learned Trial Court be directed to pass the appropriate order

considering the pleadings and the documents annexed with the plaint.

4.9. Mr. S. P. Urgunde, the learned Advocate for the Respondent

opposes this prayer also. He would submit that to give an opportunity to

the Defendant to discharge his burden, the learned Trial Court has

rightly directed the Plaintiff to make discovery of the documents sought

by the Defendant.

4.10. It appears that the Trial Court has not taken into consideration

this aspect of pleadings and the annexures. Considering the moderate

prayer i.e. prayer clause ‘C’, I deem it appropriate to remit the matter

back for reconsideration and for fresh orders.

6. Having regard to the aforesaid, the following order is passed.

ORDER

[A] (i) So far as the prayer clause ‘B’ is concerned, the same stands
5
partly allowed.

(ii) The order dated 08.06.2017 passed by the learned Jt. Civil
Judge Senior Division Omerga on the Application below
Exh.22 is quashed and set aside.

(iii) The learned Trial Court shall hear the parties on the said
Application (Exh.22) afresh and would pass the appropriate
order keeping in mind the provisions of law and the
law discussed by this Court in the matter of Oil and
Natural Gas Corpn Ltd (supra).

[B](i) So far as the prayer clause ‘C’ is concerned, the same stands
partly allowed.
(ii) The impugned order dated 29.11.2022 passed by the
learned Jt. Civil Judge Senior Division Omerga in Summary
Civil Suit No. 1/2016 on an application below Exh.60 is
quashed and set aside.

(iii) The learned Trial Court shall hear the parties and consider
the Application below Exh.60 afresh and would pass
appropriate order in view of the observations made in this
order and in accordance with law.

(D) Parties undertake to appear before the learned Trial Court on
15.09.2026.

(E) All the contentions are kept open.

( AJIT B. KADETHANKAR, J. )
GGP

Continue reading with your account

Checking your session…