DAYANAND BHUSHANRAO AMBEKARversusASHOK BHAURAO BIRADAR

2026:BHC-AUG:40551

                                                                      850.2023WP


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                            WRIT PETITION NO. 850 OF 2023

             Dayanand s/o Bhushanrao Ambekar
             Age : 33 years, Occ : Private Service,
             R/o Khanapure Niwas, Behind Kore Garden,
             Near Bholenath Building, Motinagar, Latur,
             Tal : Latur, Dist : Latur
                                                    ... PETITIONER
                         VERSUS

             Ashok S/o Bhaurao Biradar
             Age : 66 years, Occ : Agri.,
             R/o Pimpri, Tal : Udgir,
             At/p R/o. Motinagar, Latur,
             Tq. & Dist. Latur,
                                                     ... RESPONDENT
                                             ...
             Mr. V.G. Kodale, Advocate for the Petitioner
             Mr. Hanmant V. Patil, Advocate for respondent no.1.
                                             …


                          CORAM               : VAISHALI PATIL – JADHAV, J.

                          RESERVED ON         : AUGUST 24, 2026

                          PRONOUNCED ON       : SEPTEMBER 04, 2026

             JUDGMENT :

                         Rule. Rule made returnable forthwith and heard

             finally with the consent of the learned advocates for the parties.



             2.          By way of present petition, the petitioner, who is the

             original defendant in Rent Suit No. 4/2021, has challenged the


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legality and correctness of the orders dated 28.09.2022 passed

by the learned 2nd Joint Civil Judge, Senior Division, Latur,

(hereinafter referred to as “Trial Court”) below Exhibits 10 and

11. By the impugned orders, the trial Court rejected the

petitioner's application filed at Exhibit 10 for seeking time to file

written statement and the application filed at Exhibit 11 for

setting aside the ex-parte order.



3.         Brief facts of the case are that the respondent-

original plaintiff filed Rent Suit No. 4/2021 for recovery of rent

and possession against the present petitioner on 18.02.2021.

The suit summon was duly served upon the petitioner on

14.08.2021, and the date fixed for appearance was 16.08.2021.

The petitioner failed to appear, and consequently, an ex-parte

order was passed by the trial Court on 16.12.2021.

           Thereafter,    on   27.01.2022,     the    Advocate    on

instructions of the petitioner appeared and on the same day, his

advocate filed two applications - Exhibit-10 for seeking time to

file the written statement and Exhibit-11 for setting aside the

ex-parte order. By the impugned orders dated 28.09.2022, the

trial Court rejected both applications.




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4.          Learned advocate for the petitioner submits that

the petitioner could not appear before the trial Court on the

date fixed for appearance, due to sufficient cause i.e. the surge

of    COVID-19    pandemic.   Reliance   was   placed    upon   the

judgments    of   the   Hon'ble   Supreme   Court   in    Prakash

Corporates Vs. Dee Vee Projects Limited reported in AIR

2022 SC 946 and In Re: Cognizance for Extension of

Limitation reported in (2022) 3 SCC 117 to submit that the

period of limitation was extended by the Hon'ble Supreme Court

in view of the pandemic, and the petitioner's case is covered

under the same extension.

            It was submitted that the petitioner contacted his

advocate and took immediate steps to appear before the Court

as soon as he became aware of the ex-parte order. Further

regarding the absence of signature and verification on the

applications, learned advocate submitted that since the matter

was on the board and the petitioner was not present in Court on

27.01.2022, the advocate before the trial Court filed the

applications on his instructions. It was not possible to get the

documents verified on the same day due to the urgency of the

matter.




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           Learned advocate lastly submitted that the trial

Court has rejected the applications on very technical grounds

which has resulted in grave injustice and has deprived the

petitioner of his valuable right to defend the suit on merits, and

therefore, prayed for quashing the impugned orders and

allowing the applications.



5.         Per contra, learned advocate for the respondent

strongly opposed the petition. It was submitted that the

petitioner has failed to show a just and sufficient cause for his

non-appearance on 16.12.2021, as required under Order IX,

Rule 7 of the Code of Civil Procedure, 1908. The reason of

COVID-19 is a mere afterthought and is not acceptable, as the

courts were functioning and there were no restrictions during

the relevant period.



.          Learned     advocate    lastly   submitted   that   the

applications were rightly rejected by the trial Court as they were

not signed by the petitioner and lacked verification, and thus,

prayed for dismissal of the petition.




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6.         Heard learned advocate Mr. V. G. Kodole for the

petitioner and learned advocate Mr. H. V. Patil for the

respondent. I have given careful consideration to the rival

submissions and perused the record.



7.         The trial Court rejected both applications, giving the

following specific reasons:

(a)   Exhibit 11: The Court held that (i) the application was not

signed by the petitioner and was not supported by his affidavit;

and (ii) the reason of COVID-19 pandemic was not a sufficient

cause as the Court was functioning fully and restrictions had

been lifted since August 2021.

(b)   Exhibit 10: The Court held that the application was not

maintainable as it sought time to file a written statement after

an ex-parte order was passed, without first setting aside the

said ex-parte order.



8.         In the present case, the suit was filed on 18.02.2021

and the summon was served on the petitioner on 14.08.2021. It

is pertinent to note that the summon was served at the time

when the second wave of the pandemic was at its peak. The date

fixed by the trial Court for appearance was 16.08.2021, but as


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the petitioner failed to appear. Ex-parte order was passed on

16.12.2021. The petitioner was not aware about the passing of

the ex-parte order. Meanwhile, he enquired with the Advocate

and asked him to check the status of the suit. At that time,

learned Advocate for the petitioner informed him that the matter

is on today's board i.e. on 27.01.2022, and therefore, it was

necessary to appear before the trial Court and after the consent

of the petitioner, the learned Advocate appeared before the trial

Court and filed the applications seeking time to file written

statement and to set aside the ex-parte order. Both the

applications were filed on the same day i.e. on 27.01.2022 and

as the petitioner was not present in the Court, the learned

Advocate filed both the applications without the verification and

signature of the petitioner.



9.           This chain of events indicates that the petitioner was

active in taking steps to protect his rights as soon as he was

able to ascertain the status of the suit. The delay is not

inordinate    and   has   been   sufficiently   explained    by    the

extraordinary circumstances of Covid-19 pandemic. This reason

is sufficient as required under Order IX Rule 7 of the Code of

Civil Procedure, 1908.


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10.          This Court is of the considered view that the ends of

justice would be better served if the petitioner is given an

opportunity to contest the suit on merits rather than being

rejected on technicalities. The procedural lapses in the present

case, are curable and do not warrant the rejection of the

applications. The explanation of COVID-19 pandemic, when

viewed in the context of circumstances that prevailed during the

relevant   period   constitutes   a   sufficient   cause   for    non-

appearance.



11.          If the aforesaid circumstances are cumulatively

considered then the petitioner needs to be given a chance as the

reasons are not of such magnitude as to proceed in the matter

ex-parte or to deny the petitioner leave to file the written

statement.



12.          For the reasons stated above, I pass the following

order :-

                              ORDER

(i) The impugned orders dated 28.09.2022 passed below

Exhibit-10 and Exhibit-11 by the learned 2 nd Civil Judge, Senior


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Division, Latur in Rent Suit No. 4/2021, are hereby quashed

and set aside.

(ii) On 28.09.2022, the petitioner has filed the written

statement, the same be taken on record.

(iii) The petitioner shall furnish an undertaking before the trial

Court that he shall co-operate for expeditious disposal of the

suit.

(iv)    Writ Petition is allowed in above terms.


13.          Rule is made absolute in the above terms.




                                    [VAISHALI PATIL – JADHAV]
                                              JUDGE




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