Ramesh and Others vs Shrushti Developers and Others

Z.A. Haq, J.—Heard Shri P.S. Sadawarte, learned Advocate for the applicants/petitioners and Shri V.A. Dhabe, learned Advocate for the non-applicants/respondents.

Rule. Rule made returnable forthwith.

The applicants have filed this application praying that the judgment passed by this Court in Writ Petition No. 2424 of 2004 on 10-04-2015 be recalled and the applicants be granted hearing. For the reasons stated in paragraph No. 1 of the civil application and the fact that the averments made in paragraph No. 1 of the civil application have not been controverted by the non-applicants, the civil application is allowed. The judgment passed in Writ Petition No. 2424/2004 on 10-04-2015 is recalled.

WRIT PETITION NO.2424 OF 2004.

Heard Shri P.S. Sadawarte, learned Advocate for the petitioners and Shri V.A. Dhabe, learned Advocate for the respondents. As the petition is of 2004, it is taken up for hearing.

Shri P.S. Sadawarte, learned Advocate for the petitioners has submitted that the application (Exhibit No. 32) on which the impugned order has been passed, could not have been entertained by the trial Court. It is submitted that the respondents have filed the application under Section 151 of the Code of Civil Procedure, making prayer, which in fact amounted to seeking review of the order passed by the trial Court on 16-12-2002 rejecting the earlier application filed by the respondents seeking permission to file written statement on the record. It is submitted that the respondents were required to file application under Section 114 or Order XLVII of the Code of Civil Procedure and the application under Section 151 of the Code of Civil Procedure could not have been entertained by the trial Court. It is further submitted that the application (Exhibit 32) came to be filed by the respondents after the prescribed period of limitation of 30 days and without there being any application praying for condonation of delay, the learned trial Judge could not have allowed the application (Exhibit No. 32). The learned Advocate for the petitioners has relied on the judgment given by the Hon''ble Supreme Court in the case of State of U.P. and Others Vs. Roshan Singh (Dead) by LRs. and Others, and has submitted that when a statutory provision is available for the party to seek the relief, the provisions of Section 151 of the Code of Civil Procedure cannot be invoked.

It is further submitted that the earlier order passed on 16-12-2002 cannot be said to be an erroneous order which could have been reviewed by the trial Court. In support of this submission reliance is placed on the following judgments :

(i) Judgment given by this Court in the case of The Executive Engineer, Lower Wana Project Division, The Sub-Divisional Officer, Lower Vena Canal Project, Sub-Division No. 3, Sindi Railway and The Sub-Divisional Engineer, Lower Vena Project Sub-Division No. 4 Vs. Vasant Nattuji Kosare and The Member, Industrial Court, .

(ii) Judgment given by the Division Bench of this Court in the case of Spanco Limited Vs. A2Z Maintenance and Engineering Services Limited and Another, .

(iii) Judgment given by the Hon''ble Supreme Court in the case of Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, .

It is submitted that the trial Court could not have reviewed the earlier order dated 16-12-2002 by entertaining the application (Exhibit No. 32) which was filed beyond the prescribed period of limitation, without there being any application filed by the respondents seeking condonation of delay. In support of this submission, the learned Advocate has relied on the following judgments :

(i) Judgment given by the Division Bench of this Court in the case of Nivruti G. Ahire Vs. State of Maharashtra and others, .

(ii) Judgment given by the Division Bench of this Court in the case of Shri Waghjai Devi Endowment Trust, Kusgaon and others vs. Sanjiv Kashinath Vare and others reported in 2007(2) ALL MR 301.

The learned Advocate for the petitioners has pointed out that the original defendants did not file the written statement for a period of more than 4 years inspite of the fact that the trial Court had granted them time repeatedly to file the written statement. Relying on the judgment given by the Hon''ble Supreme Court in the case of Om Prakash Gupta Vs. Union of India (UOI) and Another, , it is submitted that the trial Court should not have accepted the written statement on the record and should have proceeded to pronounce the judgment under Order VIII Rule 10 of the Code of Civil Procedure.

Shri P.S. Sadawarte, learned Advocate has further submitted that Writ Petition No. 1584 of 2007 was filed before this Court arising out of an order passed in the civil suit i.e. Special Civil Suit No. 360 of 1999. It is submitted that while issuing Rule in Writ Petition No. 1584 of 2007, this Court directed that the present writ petition should be heard with Writ Petition No. 1584 of 2007, however, the respondents did not point out this fact to this Court on 10-04-2015 when the present petition came to be decided. It is prayed that the petition be allowed with costs.

Shri V.A. Dhabe, learned Advocate for the respondents has submitted that the trial Court has rightly exercised its jurisdiction under Section 151 of the Code of Civil Procedure to rectify the apparent error which was committed while rejecting the earlier application filed by the respondents seeking permission to file the written statement on the record. It is submitted that the written statement filed by the respondents was not taken on the record relying on the amended provisions of the Code of Civil Procedure overlooking the fact that the civil suit is of 1999 and the provisions of amended Code of Civil Procedure did not apply. It is submitted that Writ Petition No. 1584 of 2007 has also been decided on 19-08-2015. It is further submitted that the trial Court has proceeded in the matter, issues are framed and the petitioners/plaintiffs have filed the affidavit in lieu of evidence. Relying on the judgment given by the Division Bench of this Court in the case of Smt. Shantibai K. Vardhan and Others Vs. Ms. Meera G. Patel and Mr. Kiran G. Patel, , it is submitted that the procedural law cannot frustrate the rights of the parties and the law has to be applied to achieve the ends of justice to decide the controversy between the parties. It is prayed that the impugned order may not be interfered with at this stage.

After considering the submissions made by the respective parties, I am of the view that the impugned order passed by the trial Court does not require any interference. Though the submission made on behalf of the learned Advocate for the petitioners that the application filed by the respondents under Section 151 of the Code of Civil Procedure could not have been entertained by the trial Court as the provisions of Section 114 of the Code of Civil Procedure or Order XLVII of the Code of Civil Procedure ought to have been resorted to by them, prima facie seems to be correct, in the facts of the present case, it cannot be said that the trial Court has committed any error in entertaining the application filed by the respondents under Section 151 of the Code of Civil Procedure. The trial Court had committed an error in passing the order dated 16-12-2002 under the misconception that the written statement was required to be filed within 90 days as per the amended provisions of Order VIII of the Code of Civil Procedure. The trial Court, while relying on the amended provisions of the Code of Civil Procedure overlooked the fact that the civil suit is of 1999 and the amended provisions of the Code of Civil Procedure could not have been applied. The learned trial Judge realised the error committed by the Court earlier and rectified it by allowing the application filed by the respondents under Section 151 of the Code of Civil Procedure. Therefore, in the facts of the present case, the judgments relied upon by the learned Advocate for the petitioners will not be applicable.

The submission made by the respondents that it would not be appropriate at this stage to set aside the impugned order, also requires consideration. The petitioners/plaintiffs have filed the affidavit in lieu of evidence after the issues came to be framed by the trial Court, after considering the pleadings of the respondents in the writ petition. Therefore, it would not be appropriate to set aside the impugned order at this stage.

In view of the above, the writ petition is dismissed. In the circumstances, the parties to bear their own costs.