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2011 DIGILAW 1268 (BOM)

Kalpana Udhav Disle v. Ganesh s/o Udhav Disle

2011-10-11

S.S.SHINDE

body2011
JUDGMENT: 1. Rule. Rule made returnable forthwith. With the consent of the parties, the matter is taken up for final hearing. 2. This writ petition is filed challenging the order dated 31-08-2010 below Exhibit-25 in Regular Civil Suit No. 316 of 2009 passed by the 11th Joint Civil Judge, Junior Division, Beed. 3. The background facts for filing this writ petition as described in the writ petition are as under: On 16-09-2009 Regular Civil Suit No. 316 of 2009 came to be filed for partition and separate possession against the petitioner, her husband and one another first wife of husband of the petitioner. The plaintiff N.3 left the house of her husband alongwith plaintiff Nos.1 and 2. There was no any person to look after defendant No.1. It is the case of the petitioner that, the petitioner married with defendant No.1 i.e. respondent No. 4 herein. 4. On 06-09-2009 when the aforesaid fact came to the notice of the plaintiff, she started cohabiting with defendant No.1. The petitioner herein who is the original defendant No.2 was present. It is the case of the petitioner that, the plaintiff and defendant No. 2 drove the petitioner out of the house. Since then she is residing in her parental house. On 16-09-2009 the plaintiff filed suit for partition and separate possession. On 25-09-2009 suit summons were served on the petitioner. On 06-10-2009 the petitioner delivered a female child at her parental house. 5. It is the case of the petitioner that, on 24-08-2010 when her husband neglected her, she filed Misc. Criminal Application No. 1607 of 2010 for maintenance. 6. On 22-01-2010 "No W.S. order" was passed by the trial Court in Regular Civil Suit No.316 of 2009. On 05-08-2010 the application for setting aside "No W.S. order" was filed and the trial Court rejected the same on 31-08-2010. Hence this Writ Petition. When this writ petition was heard for admission on 23-11-2010 this Court granted interim relief in terms of prayer clause (D) thereby stated further proceedings in the suit. 7. On 05-08-2010 the application for setting aside "No W.S. order" was filed and the trial Court rejected the same on 31-08-2010. Hence this Writ Petition. When this writ petition was heard for admission on 23-11-2010 this Court granted interim relief in terms of prayer clause (D) thereby stated further proceedings in the suit. 7. Learned Counsel appearing for the petitioner invited my attention to the contents of the application which was filed before the trial Court and submitted that, valid grounds were taken in the said application that the petitioner was pregnant and delivered a child on 06-10-2009 and therefore, she could not file written statement in the suit within stipulated period as contemplated in Order VIII Rule 1 of the Code of Civil Procedure Code. According to learned Counsel for the petitioner, on the grounds taken in the writ petition and contents of the application which was filed before the trial Court for setting aside "No W.S. order", this writ petition deserves to be allowed. 8. On the other hand, learned Counsel appearing for the respective respondents submits that, mandate of Order VII Rule 1 of the Code of Civil Procedure provides that written statement should be filed within 30 days from receiving summons and the concerned Court can grant time for maximum 90 days. However,in the instant case, written statement is filed after ten months after receiving summons. Therefore, this Court may not interfere in the impugned order. 9. I have given due consideration to the rival submissions. The Hon'ble Supreme Court in catena of decisions held that, provisions of Order VIII Rule 1 of the Code of Civil Procedure are hand made rules to regulate procedure which cannot take away substantial rights of the parties to contest the suit. In the instant case, it is not in dispute that the petitioner herein delivered child on 06-10-2009. The concerned Court taking liberal view in the matter should have allowed the petitioner herein to file Written Statement. The order impugned in this writ petition refusing to set aside "No W.S. order" would certainly affect on the substantial right of the petitioner to contest the suit and file written statement. In a given case, the Court can allow the party to file Written Statement by imposing reasonable costs on the concerned party to compensate other side. The order impugned in this writ petition refusing to set aside "No W.S. order" would certainly affect on the substantial right of the petitioner to contest the suit and file written statement. In a given case, the Court can allow the party to file Written Statement by imposing reasonable costs on the concerned party to compensate other side. However, interpretation given by the trial Court in the impugned order is too technical and would certainly cause prejudice to the petitioner. 10. In that view of the matter, the impugned order is quashed and set aside. The petitioner is allowed to file Written Statement before the concerned Court within three weeks from today. However, the petitioner to deposit costs of Rs.2000/ (Rs. Two thousand only) in the trial Court. Upon depositing such costs, trial Court should allow the respective respondents to withdraw and share the amount of costs. 11. Writ Petition is allowed to the above extent and stands disposed of. Rule made absolute as indicated above.