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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.3759 OF 2022

PARVATABAI VISHNU WAGHMARE AND OTHERS

VERSUS

KAUSABAI NARAYAN RAUT AND OTHERS

…

Ms. Manjushri V. Narwade, Advocate for the Petitioners.

Mr. Baliram B. Shinde, Advocate for Respondent No.1.

…

CORAM : SANDEEP V. MARNE, J.

DATED : 09^th DECEMBER, 2022.

PER COURT:-

1.

Petitioners, who are defendants in the suit filed by

respondent no.1, challenge order dated 17.02.2022 passed by the

Civil Judge, Senior Division, Aurangabad directing that the suit

will proceed without any written statement.

2.

Petitioners, after receipt of summons on 17.06.2019,

04.05.2019 and 19.06.2019 appeared in the suit on 26.08.2019, but

did not file written statement within stipulated time. They claim

that on 09.09.2019, they filed application for supplying legible

copies of the plaint and documents and later obtained certified

copies from the Registry. They however failed to file the written

statement thereafter. Therefore the Trial Court was constrained

to pass ‘no written statement’ order on 26.09.2019.

3.

Petitioners applied for setting aside the ‘no written

statement’ order only on 24.02.2020 i.e. after lapse of period of

five long months. The Trial Court showed indulgence and allowed

the application permitting petitioners to file written statement by

imposing costs of Rs.2000/- by order dated 25.08.2021.

4.

So negligent were petitioners that despite grant of

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indulgence by the Trial Court, they neither paid costs nor filed

their written statement despite and thereby allowed the

opportunity granted by Trial Court to slip out of their hands. The

Trial Court therefore passed ‘no written statement’ order once

again on 22.11.2021.

5.

Petitioners once again filed application dated

12.11.2021 showing willingness to pay costs imposed by order

dated 25.08.2021. In my view, application dated 12.11.2021 ought

to have been rejected by the Trial Court. The Trial Court

nonetheless showed one more indulgence to petitioners by passing

order dated 19.11.2021 allowing their application by imposing

additional costs of Rs.2000/- (total costs of Rs.4000/-). Petitioners

once again defaulted and failed to pay the costs as directed by the

Court. This has led to passing of order dated 17.02.2022 thereby

revoking the indulgence earlier granted in their favour by order

dated 19.11.2021. Aggrieved by the order dated 17.02.2022, the

present petition is filed.

6.

From the above chronology of events, there can be no

matter of doubt that petitioners are intentionally delaying

progress of the suit and that they are extremely negligent in

defending themselves. To deal with the case of such negligent

clients, Ms. Narwade, the learned counsel appearing on their

behalf places reliance on the judgment of the Supreme Court in

Kailash Vs. Nanhku & ors., (2005) 4 SCC 480. In paragraph

27 of the judgment the Apex Court has held as under:

“All the rules of procedure are the handmaid of justice. The

language employed by the draftsman of processual law may

be liberal or stringent, but the fact remains that the object of

prescribing procedure is to advance the cause of justice. In an

adversarial system, no party should ordinarily be denied the

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opportunity of participating in the process of justice

dispensation. Unless compelled by express and specific

language of the Statute, the provisions of the CPC or any

other procedural enactment ought not to be construed in a

manner which would leave the court helpless to meet

extraordinary situations in the ends of justice. The

observations made by Krishna Iyer, J. in Sushil Kumar

Sen v. State of Bihar (1975) 1 SCC 774, are pertinent:-

"The mortality of justice at the hands of law troubles a

Judge's conscience and points an angry interrogation at

the law reformer.

The processua