43-wp14208-22.doc vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.14208 OF 2022 Shirley Naresh Rajwani ...Petitioner / ...Plaintiff V/s. M/s.Nensee Construction Pvt. Ltd. & Ors. ..Respondents Dr.Abhinav Chandrachud with Ms.Pragya, Mr.Ameya Khot i/b M/s.Legal Vision for the Petitioner. Mr.Henna P. Shah with Adv.Palak Ranka for Respondent Nos.1 and 2. CORAM : PRAFULLA S. KHUBALKAR , J. DATE : 17TH JUNE, 2026. P.C. :- 1. Heard learned counsel for the petitioner as well as respondents. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. By this petition under Article 227 of the Constitution of India, the petitioner has raised challenge to an order dated 17th February, 2020 passed by the Principal Judge, Greater 1/10 43-wp14208-22.doc Bombay allowing notice of motion no.1667 of 2019 in BCCC Suit no.6034 of 2005, by which the defendants are permitted to file their written statement. 4. The petitioner is the original plaintiff, who has filed the suit seeking specific performance of contract with respect to the suit property. The suit was filed in the year 2005 and despite service of notice upon the defendants, they failed to file the written statement for a considerable period and the suit remained pending. On 16th January, 2014, the trial court has passed an order by observing that the defendants had failed to file the written statement and directed that the suit be transferred in the list of un-defended suits. As a result, on account of non filing of the written statement by the defendants, the suit proceeded without the written statement of the defendants. Thereafter, the defendants had filed the notice of motion on 13th March, 2019 and challenged the order dated 16th January, 2014 and sought for permission to file the written statement on behalf of defendant nos.1 and 2. The plaintiff had 2/10 43-wp14208-22.doc opposed this application, however, by order dated 17th February, 2020, the trial court has allowed the notice of motion. Feeling aggrieved by this order, the original plaintiff has filed the instant petition. 5. Dr.Abhinav Chandrachud, learned counsel for the petitioner submitted that the impugned order allowing the notice of motion is unsustainable as the court has condoned the unexplained and inordinate delay on the part of the defendants in filing the application for setting aside no-written-statement order. He submitted that the reasons mentioned in the affidavit in support of the notice of motion clearly showed negligent conduct on the part of the defendants and that the reasons put forth about finalization and notarization of the written statement by the earlier advocate, are improbable and unexplained. He submitted that the trial court ought to have inferred that the defendants failed to give any satisfactory explanation to justify the inordinate delay in filing the written statement in time particularly when their lawyer was attending the matter. He submitted that the reasons referring to change of advocates 3/10 43-wp14208-22.doc repeatedly, are putforth only to cover up the lapses on the part of the defendants and in absence of any sufficient cause, the notice of motion deserves to be rejected. 6. In support of this submission, he placed reliance on the judgment of the Hon’ble Supreme Court in the matter of Atcom Technologies Ltd. vs. Y.A. Chunawala & Co. reported in (2018) 6 SCC 639, judgment of co-ordinate bench of this court in the matter of Rupchand Rajmalji Jain vs. Jayantilal Kalyanji Gada of Mumbai and Ors., reported in 2018 SCC OnLine Bom. 745 and Vasant Vithal Gawand vs. Shantaram Tukaram Gawand (since deceased) by his L.Rs. Prakash Shantaram Gawand, reported in 2016(1) Mh.L.J. 89. By pointing out the legal position from the judgment of the Hon’ble Supreme Court in the matter of Atcom Technologies Ltd. (supra), he submitted that despite the defendants failed to make out any exceptional case, the trial court has erroneously exercised its discretion, without considering justness of the cause put forth. By relying on the position of law as laid down in Rupchand Rajmalji Jain (supra), 4/10 43-wp14208-22.doc he submitted that the reasons put forth by the defendants blaming their earlier counsel cannot be considered as sufficient circumstance for allowing the defendants to file the written statement belatedly. Further, by relying upon the judgment in the matter of Vasant Vithal Gawand (supra), he submitted that the conduct of the defendants showed gross negligence as they had engaged an advocate earlier and were aware about need of filing the written statement in time particularly when they had attended the matter. 7. Per contra, Advocate Ms.Henna Shah, learned counsel for the respondents vehemently opposed the petition and justified the impugned order. She submitted that the defendants had candidly stated the reasons in the affidavit in support of the notice of motion, which are rightly considered by the trial court. She submitted that the defendants had stated on affidavit that the written statement was in fact provided by them to finalize and get notarised which was then handed over to the office of their earlier advocate, Mr.Negandhi for filing before this Court. It is stated that after the matter was transferred from this Court 5/10 43-wp14208-22.doc to the trial court on account of pecuniary jurisdiction there was change of lawyer and new advocate was not diligent in pursuing the matter. It is also stated that therefore the defendants remained under impression that the written statement was filed and after the change of their counsel, it was revealed that the written statement was not filed in time and the order dated 16th January, 2014 was already passed against the defendants. She submitted that in view of the specific reasons mentioned in the notice of motion, the defendants had made out sufficient cause for getting the order of "no written statement" set aside and as such no indulgence is warranted with the impugned order. 8. In support of her submissions, she placed reliance on the judgment of the Hon’ble Supreme Court in the matter of (i) Sheo Raj Singh (Deceased) through L.Rs. & Ors. vs. Union of India & Ors, reported in MANU/SC1098/2023, (ii) The Secretary, Department of Horticulture, Chandigarh & Ors. vs. Raghu Raj, reported in MANU SC8167/2008, (iii)Collector, Land Acquisition, Anantnag & Ors. vs. Katiji & Ors., reported in 6/10 43-wp14208-22.doc MANU/0460/1987 and (iv) Easha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in MANU/SC/0932/2013. By pointing out the observations of the Hon’ble Supreme Court in the matter of Sheo Raj Singh (Deceased) through L.Rs. & Ors. (supra) she submitted that discretionery order passed by the trial court in the instant matter is based on the reasons recorded therein and hence no interference is warranted. By pointing out legal position from the other judgments she submitted that the trial court is justified in allowing the notice of motion, as the defendants had made out a sufficient cause. 9. In the backdrop of these submissions, rival contentions fall for my consideration. 10. It has to be noted that the trial court has allowed the notice of motion by elaborately considering the contentions canvassed by both the parties. By the impugned order, the trial court has exercised discretion in favour of the defendants and allowed the notice of motion, subject to costs of Rs.10,000/- to 7/10 43-wp14208-22.doc be paid to the plaintiff. Further, it has to be noted that the defendants have mentioned elaborate reasons in their affidavit and have stated the circumstances for not filing the written statement in time. It is crucial to note that the defendants have specifically mentioned the names of the advocates, who were engaged by them for contesting the suit. Thus, by considering the contentions of the parties, the trial court has found this case to be a fit case for exercise of discretion to allow the defendants to file the written statement. 11. It has also to be noted that although the suit summons was served upon the defendants in the year 2005, the order of no written statement was passed by the trial court on 16th January, 2014. It appears that thereafter the suit remained at that stage till the defendants filed the notice of motion on 13th January, 2019 seeking permission to file the written statement on record. Thus, it appears that even though "no written statement" order was passed on 16th January, 2014, the plaintiff has not led evidence and thus since the suit remained at the same stage, the plaintiff cannot claim any prejudice on account 8/10 43-wp14208-22.doc of permitting the defendants to file the written statement. 12. The position of law is well settled, that procedure is handmaid of justice and denial of an opportunity to the defendants to file the written statement would deprive them to contest the suit on merits. It is desirable that the suit is contested on merits and decided finally so that the controversy is put at rest on merits. Further, it is also settled position of law that the provisions of order VIII Rule 1 of Civil Procedure Code are held to be directory and by considering the need to balance rights and equities of the parties, the courts are entitled to pass appropriate discretionary orders. As such exercise of discretion by the trial court in the instant case, if tasted from these angles, I do not find any perversity with the impugned order passed by the trial court. 13. Although counsel for the petitioner has pointed that the defendants had not filed the written statement for years together since 2005, it has to be noted that the defendants had candidly stated in their affidavit that they were under bonafide belief that the written statement was filed by their earlier 9/10 43-wp14208-22.doc counsel Advocate Negandhi. Pertinent to note that the defendants have stated in detail the reasons for engaging the new advocates which shows the conduct of an ordinary litigant. The reasons put forth in the affidavit does not appear to be mala-fide and worth rejecting. Although, the defendants had appeared in the suit since 2005 but carried a bona-fide belief about filing of the written statement and therefore they need not be penalized by depriving them of an opportunity to defend the suit on merits. In view of these aspects, the contentions of the petitioner cannot be accepted. 14. A perusal of the impugned order shows that the trial court has recorded the reasons while exercising the discretion in allowing the notice of motion. The impugned order appears to be an attempt to balance the rights and equities of the parties and I do not find any perversity warranting indulgence under Article 227 of the Constitution of India. 15. Hence the petition deserves to be dismissed and accordingly, the same is dismissed with no order as to costs. (PRAFULLA S. KHUBALKAR, J.) 10/10