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2014 DIGILAW 1049 (BOM)

Cajetan Cordeiro v. Rajendra Kumar Motwani

2014-04-24

S.B.SHUKRE

body2014
Judgment : 1. Heard learned Counsel Mr. Pangam appearing on behalf of the petitioners and learned Counsel Mr. Kantak appearing on behalf of the respondents no. 1, 3 and 4. Rule. Rule made returnable forthwith. Learned Counsel Mr. Kantak waives service of notice on behalf of respondents no. 1, 3 and 4 on merits. The petition is already dismissed as against respondents no. 2 and 5. Heard finally by consent. 2. After hearing both the sides, the question that arises for my consideration is: “whether the impugned order passed by the learned Civil Judge is arbitrary and unreasonable?” 3. In the suit filed by the petitioners against the respondents, by an application dated 18.09.2010, the petitioners sought leave of the Court under Order VIII Rule 9 of C.P.C. to file pleadings subsequent to filing of written statement. The application was opposed by the respondents stating that it was not maintainable . Upon hearing both the sides, the learned Civil Judge rejected the application by an order passed on 18.11.2010. The order reads as follows: “Perused records and considered the same together with arguments. The leave sought by plaintiffs by the present application is not maintainable as the plaintiffs have not made out a case for granting such an application. Hence, the present application for granting leave to file subsequent pleadings in the form of rejoinder stands rejected.” 4. The learned Counsel for the petitioners submits that the order does not state any reason as to why the application filed by the petitioners was not maintainable and why it did not disclose any case of not granting the application, and, therefore, on this count itself, the petition needs to be allowed and the matter remanded back to the learned Civil Judge for a re-consideration and decision afresh on merits. 5. Learned Counsel for respondents no. 1 and 2 submits that the application as filed by the petitioners was itself not maintainable, as there is no provision for filing of the subsequent pleadings by the plaintiffs subsequent to filing of the written statement. He submits that the application was under the provisions of Order VIII Rule 9 of C.P.C. and Order VIII exclusively deals with written statement, set-off and counterclaim. He submits that the application was under the provisions of Order VIII Rule 9 of C.P.C. and Order VIII exclusively deals with written statement, set-off and counterclaim. He also submits that if, any application under the said provision is filed, and is allowed by the Court, it would result in causing of prejudice to the defence of the defendants, there being no provision enabling the defendants to file a rejoinder and, therefore, such an application is not maintainable under the law. In support, he has cited before me the judgment of this Court rendered on 23.09.2009 in an un-reported case in Writ Petition No. 524/2009 between Shri Datta Laxmikant Nayak Karmali Vs. Priya Daata Nayak Karmali. 6. In reply, the learned Counsel for the petitioners submits that such an application is permissible as held in the case of Sunil and Vasanth Architects and Consulting Engineers and Another Vs. Tata Ceramics Ltd. reported in AIR 1999 Kerala 88 and also the case of, Sarla Kapur and Another Vs. Sanjay Sudesh Kapur, reported in 2009 (1) BCR 416. 7. A bare perusal of the impugned order makes clear one thing. It shows non-application of mind by the learned Civil Judge. She does not state any reasons as to why the application is not maintainable and how it does not make out any case for granting the application. Supporting a judicial order with reasons is the expectation of the fundamental principle of rule of law that every authority performing judicial or quasi-judicial functions must fulfill. It enables parties to know whether or not the authority has applied it's mind to the facts of the case and the law applicable to it and arrived at a decision upon judicious consideration of the case. This in turn enables the party affected by the decision to weigh the options it may have to challenge the decision. This basic principle of law has not been followed in this case and, therefore, I find the impugned order is unreasonable and arbitrary. The point is accordingly answered as in the affirmative. 8. In the circumstances, I am of the view that the impugned order deserves to be quashed and set aside and the matter remanded back to the learned Civil Judge for considering the application afresh on merits. The point is accordingly answered as in the affirmative. 8. In the circumstances, I am of the view that the impugned order deserves to be quashed and set aside and the matter remanded back to the learned Civil Judge for considering the application afresh on merits. I may clarify that the judgments cited by both sides have not been considered by me, for, I do not think it necessary to consider them, as the matter is being remanded to the trial Court for a fresh consideration on merits. 9. In the result, the writ petition is allowed and the impugned order is quashed and set aside. The matter is remanded back to the learned Civil Judge for a decision afresh, in accordance with law. 10. Rule is made absolute in these terms. No order as to costs. 11. Writ petition stands disposed of.