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2022 DIGILAW 112 (BOM)

Municipal Council, Chikhli v. Ajay

2022-01-12

ANIL L.PANSARE

body2022
JUDGMENT Anil L. Pansare, J - Rule. Rule made returnable forthwith. Heard finally with consent of parties. 2. The petitioner-Municipal Council, Chikhli, has filed the instant petition challenging the order dated 5th December, 2019 passed by learned Joint Civil Judge, Senior Division, Buldana, below Exhs 87 and 88 in Special Civil Suit No. 3/2016. By the impugned order, the learned Judge of the trial Court has rejected both the applications filed by the petitioner. 3. It so happened that the respondent filed a suit for recovery of Rs. 60,19,750/- for carrying out necessary survey for Chikhli town. In response to summons the defendants appeared but failed to file written statement. Accordingly, the suit proceeded without written statement. The respondent who is the plaintiff before the trial Court had filed an affidavit in lieu of examination-in-chief. The chief examination was concluded on 06.01.2018. Thereafter the petitioner filed an application seeking to set aside the order of 'no written statement'. The said Application came to be allowed subject to payment of costs of Rs. 7,000/-. The written statement was accordingly taken on record. However, the petitioner failed to cross-examine the respondent and on 15th October 2018, the petitioner sought adjournment to cross-examine the petitioner. However his request came to be rejected. The petitioner therefore partly cross-examined the respondent. It appears that the petitioner's request for adjournments followed thereafter. Ultimately on 1st December, 2019 the application seeking adjournment to cross-examine the respondent came to be dismissed and order of 'no cross-examination' was passed. Thereafter, the respondent closed his evidence on 15.12.2018. The matter was kept for evidence of petitioner, however, the petitioner did not remain present. On 25th April 2019, the petitioner applied for setting aside 'no cross order'. The said Application came to be allowed subject to payment of costs of Rs. 2,500/- to be deposited forthwith, so also to cross-examine the respondent who was present before the trial Court, It appears that the petitioner did not comply with the said order as well but sought application for extension of time to deposit the costs. On the next date i.e. 27th June 2019, the petitioner filed yet another application seeking extension of time to comply with the order directing it to deposit the costs and to cross-examine the respondent. Similarly, such applications came to be filed thereafter. On the next date i.e. 27th June 2019, the petitioner filed yet another application seeking extension of time to comply with the order directing it to deposit the costs and to cross-examine the respondent. Similarly, such applications came to be filed thereafter. On 26th June, 2019 the petitioner appears to have filed two applications - one seeking permission to deposit the costs and another seeking condonation of delay to deposit the costs. 4. The said two Applications were opposed by the respondent. The learned Judge of the trial Court by referring to Section 148 of the Code of Civil Procedure arrived at a conclusion that the delay cannot be condoned. The learned Judge opined that under section 148 of the Code, the Court has discretion to enlarge the period for not more than 30 days. However the party in default has to show bona fides and make out a case for extension. The learned Judge of the trial Court has then recorded as to how the petitioner was given opportunity, firstly to file written statement, which was filed belatedly and thereafter repeatedly giving opportunities to the petitioner to cross-examine the respondent. Accordingly, the Applications were rejected. 5. Learned Advocate for the petitioner submits that though the petitioner carries the blame to a certain extent in not depositing the costs in time but not giving opportunity to the petitioner to cross-examine the respondent would be too harsh a measure for such failure. Accordingly argued that one more opportunity should be given to the petitioner on whatever conditions this court deems fit in the facts and circumstances of the case. As against this, learned Advocate for the respondent submits that the order impugned is a well-reasoned order. There is absolutely no reason as to why leniency should be shown to the party like the petitioner who has been given multiple opportunities to cross-examine the respondent. 6. This Court is in complete agreement with the submissions made by the learned Advocate for the respondent. Record would show and as has been mentioned hereinabove, that the petitioner failed to adhere to the provisions of law right from day one. The written statement has not been filed in time, rather the application for filing written statement by setting aside the order of 'no written statement' has been filed subsequent to commencement of the trial. Record would show and as has been mentioned hereinabove, that the petitioner failed to adhere to the provisions of law right from day one. The written statement has not been filed in time, rather the application for filing written statement by setting aside the order of 'no written statement' has been filed subsequent to commencement of the trial. The learned Judge of the trial Court showed indulgence even at that stage and allowed the application subject to payment of costs and allowed the petitioner to file written statement on record. However, the petitioner thereafter failed to cross-examine the respondent inspite of giving multiple opportunities. Ultimately, the trial Court was compelled to pass 'no cross-examination' order. However the same came to be set aside at the request of the petitioner but with the condition and rightly so, by depositing the costs. In that sense the trial Court showed yet another indulgence and has given yet another opportunity to the petitioner to cross-examine the respondent. However, the petitioner failed once again and sought extension of time to deposit the amount of costs, so directed by the trial Court. 7. In the circumstances, the approach of the trial Court in rejecting both the applications i.e. Exhs. 87 and 88, seeking permission to deposit the costs and condonation of delay to deposit the costs is in accordance with law. The learned Judge of the trial Court has found that there is absolutely no reason shown by the petitioner in not depositing the amount as directed by the Court. The same is the view of this Court. 8. The petitioner has pleaded that the trial Court has committed a mistake oblivious to the fact that the petitioner is a local body and for the purpose of depositing the amount necessary permission is required from the Competent Authority. This ground appears to be incorrect on the face of the record, inasmuch as the Chief officer who was party /defendant before the trial Court is the competent authority and, therefore, he was duty-bound to get the paper work done in time and deposit the amount as directed by the Court which he failed on number of occasions. It is not the case of the petitioner that there is a trivial delay. The conduct shows that the petitioner has failed to file written statement in time. It is not the case of the petitioner that there is a trivial delay. The conduct shows that the petitioner has failed to file written statement in time. The petitioner was required to pay the costs to file on record the written statement. Thereafter the petitioner was directed to pay costs to cross-examine the respondent. 9. Thus, the trial Court was lenient enough to accommodate the petitioner to the fullest possible extent, however, by recognizing the rights of the respondent, the trial Court has rightly protected the same by rejecting both the Applications. 10. The petitioner, thus, has failed to make out any case. The petition is devoid of merit, hence dismissed. Rule discharged.