SHABBIR USMAN SHAIKHversusNAWABBI HUSSAIN SHAIKH AND OTHERS

2026:BHC-AUG:40063

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                   WRIT PETITION NO. 8892 OF 2023

                           Shabbir s/o Usman Shaikh,
                           Age: 44 years, Occ: Agri,
                           R/o Anbhule Vasti, Gangathadi,
                           Godhegaon, Tq. Newasa,
                           Dist. Ahmednagar.
                                                                     …..PETITIONER
                                                                    (Orig. Deft. No.3)
                                  VERSUS

                     1.    Nawabbi w/o Hussain Shaikh,
                           Age: 69 years, Occ: Agri,

                     2.    Tayyab s/o Hussain Shaikh,
                           Age: 29 years, Occ: Agri,

                           Both R/o Godhegaoh, Tq. Newasa,
                           Dist. Ahmednagar,
                           Residing at Naikwadpura, Newasa (Kh)
                           Tq. Newasa, Dist. Ahmednagar.

                     3.    Usman s/o Amir Shaikh,
                           Age: Major, Occ: Agri,

                     4.    Shaiklal s/o Amir Shaikh,
                           Age: Major, Occ: Agri.

                           R/Nos.3 and 4,
                           R/o Ghodhegaon, Tq. Newasa,
                           Dist. Ahmednagar at present
                           Residing at Khalwadi, Newasa (Kh)
                           Tq. Newasa, Dist. Ahmednagar.
                                                              …..RESPONDENTS
                                              (Resp. No.1 and 2 - Orig. Plaintiffs
                                     Resp. nos.3 and 4 – Orig. Deft. Nos.1 and 2)
                     ______________________________________________________
                     Mr. S. S. Pawar h/f Mr. R. R. Karpe, Advocate for the Petitioner
                     Mr. Y. B. Pathan, Advocate for Respondent nos.1 and 2 (Thr. V.C)
                     ______________________________________________________
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                     CORAM : AJIT B. KADETHANKAR, J.
                     DATED : 31ST AUGUST, 2026

JUDGMENT :-

.     The present petitioner/defendant no.3 has instituted

present   petition   seeking        a    decree      for     removal   of

encroachment,    recovery      of       possession     and      perpetual

injunction under order XX Rule 12 of Civil Procedure Code for

Mesne Profit.

2.    The suit summons were served on the defendants. The

present petitioner/defendant no.3 failed to file his written

statement within the prescribed period. Even during the

extended period granted for that purpose, he chose not to file

Written statement. Consequently, ‘no say’ order was saddled

on him.

3.    Thereafter, defendant no.3 filed an application below

Exhibit-24 seeking to set aside the said order and for

permission to file written statement. The said application

came to be rejected by the learned Civil Judge, Senior

Division, Newasa on 18.03.2023. The Trial Court observed

that no sufficient reason was shown to explain the delay

caused in filing the written statement.
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4.    The recitals of the impugned order show that the Trial

Court was predominantly annoyed by the conduct of the

defendant particularly in view of the fact that the defendants

were residing at the same address and that defendant no.3

was reported to have declined to accept the Court notice.

5.    Mr. S. S. Pawar h/f Mr. R. R. Karpe, learned Advocate

for the petitioner submits that the delay caused in filing

written statement was neither intentional nor deliberate. He

submits that in the application, sufficient reasons are

mentioned explaining the delay. On these grounds, he prays

to allow the Writ petition.

6.    Mr. Y. B. Pathan, learned Advocate for respondents

appearing through video conferencing fairly submits that

before the Trial Court as also before this Court, the plaintiffs

are ready to permit the defendant to file his written statement

provided that some costs be imposed on him. He would

submit that the plaintiffs are more anxious to have the suit

decided   on   merits   rather       than   on   technicalities.   On

instructions, he therefore prays that an appropriate order be

passed, and in the event of allowing the Writ Petition same

may be made subject to payment of appropriate costs.
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7.      Heard learned Advocates for the respective parties.

Indeed there is delay in filing application seeking setting aside

the ‘no say’ order and infact there is also a delay in filing the

Writ Petition itself. In the application, it was stated that on

account     of   the    Covid-19       pandemic,   there   was   a

communication gap between the parties and their Advocate

and hence, the Written statement could not be filed within

time.

8.      So far as denial to accept Court notice is concerned, an

unconditional apology is tendered on behalf of the defendant.

At the same time, having regard to the nature of the

controversy between the parties, it would be in the interest of

justice to permit the defendant to come forward and place his

defence on record by filing written statement. The civil rights

raised before the Court deserves to be adjudicated on merits.

9.      In view of the above, I deem it appropriate to allow the

Writ Petition by permitting the petitioner to file the written

statement with directions to the Trial Court to take the written

statement on record and read the same in the proceedings.

10.     It is submitted that the written statement is already filed

with the permission application.
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11.      It is necessary to impose some costs upon the petitioner.

Considering that the suit is of the year 2019 and that the

defendant unjustifiably declined to accept the Court notice, I

deem it appropriate to alow the Writ Petition subject to

imposing costs of Rs.15,000/- by the petitioner to be

deposited in the Trial Court. In view of this, I pass following

order:

                                ORDER

        i.       Writ Petition stands allowed.
        ii.   The order dated 18.03.2023, passed by
        learned Civil Judge Senior Division in Regular
        Civil Suit No.161 of 2019 below Exhibit-24 is
        quashed and set aside.
        iii.  The application below Exhibit-24 stands
        allowed.
        iv.   The petitioner shall deposit           costs   of
        Rs.15,000/- in the Trial Court.
        v.     On such deposit, the plaintiffs would be
        entitle to withdraw the same.
        vi.     The defendant is given understanding that
        in no case he shall adjourn the suit without any
        justifiable reason.
        vii.     Writ Petition stands disposed of.



                                        ( AJIT B. KADETHANKAR, J. )

Rushikesh/2026