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Madhya Pradesh High Court · body

2017 DIGILAW 40 (MP)

Sensiv Developers Pvt. Ltd. Gwalior v. Shobha Pachhori

2017-01-09

ROHIT ARYA

body2017
ORDER : ROHIT ARYA, J. 1. This writ petition under Article 227 of the Constitution of India, at the instance of defendant No.2, the subsequent purchaser is directed against the order dated 06/07/2015 passed in civil suit No.29A/2013 dismissing application filed under section 151 CPC for taking the cross-examination on record on the premise that once the petitioner's right to file written statement was closed as far back as on 30/01/2015, such an application cannot be entertained. By amendment, the order dated 30/01/2015 passed by the trial Court has also been challenged. 2. Facts necessary for disposal of this writ petition are in narrow compass: Suit for specific performance of agreement dated 11/10/2010 is pending consideration. The suit was filed on 30/08/2013. After service of the notice, the petitioner/defendant chose not to file written statement for two years. There is no explanation forthcoming disclosing the reasons or justification for not filing the written statement during this period. Despite several opportunities granted, written statement was not filed. Consequently, on 30/01/2015, the right to file written statement was closed. Learned counsel for the petitioner has not been able to explain the period of two years for not filing the written statement. Under such circumstances, no fault can be found with the order passed by the trial Court. 3. At this stage, Shri Arshad Ali, learned counsel for the petitioner submits that the petitioner shall abide by such terms and conditions this Court deems fit and proper if one opportunity to file the written statement is granted so that the defendant No.2, the subsequent purchaser may effectively defend his cause. Shri Soni, learned counsel for the contesting respondent objects to such submission. However, it is well settled that procedural laws are hand made laws and required to be invoked to regulate the procedure of trial. Therefore, the provisions contained there under are to be applied with care and caution bearing in mind the concept of justice, equity and good conscience to achieve the ultimate aim to do substantive justice between the parties. As the petitioner has expressed his willingness and bona fide to contest the suit and also prepared to abide by the terms and conditions imposed, this Court in exercise of the equitable justification allow one opportunity to file written statement. However, it is made clear that no further indulgence for any reason whatsoever shall be granted. 4. As the petitioner has expressed his willingness and bona fide to contest the suit and also prepared to abide by the terms and conditions imposed, this Court in exercise of the equitable justification allow one opportunity to file written statement. However, it is made clear that no further indulgence for any reason whatsoever shall be granted. 4. Consequently, writ petition is disposed of with a direction that the petitioner shall appear before the trial Court on the next date fixed and pay cost of Rs.25,000/- (Rupees twenty five thousand only) and thereafter, the trial Court shall permit the petitioner to file the written statement.