IN

IN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY

ORDINARY

ORDINARY ORIGINAL CIVIL JURISDICTION

ORIGINAL CIVIL JURISDICTION

ORIGINAL CIVIL JURISDICTION

APPEAL

APPEAL

APPEAL NO. 905 OF 2005

NO. 905 OF 2005

NO. 905 OF 2005

IN

IN

IN

SUIT

SUIT

SUIT NO. 817 OF 1983

NO. 817 OF 1983

NO. 817 OF 1983

R.L. Ramchandani.

] .. Appellant

(Ori.Defdt.No.1)

Versus

Rewa Chambers Premises Cooperative

]

Society Ltd. & ors.

] .. Respondents

(Ori.Pltffs.-

Defdt.Nos.2 & 3)

Mr. Karl Shroff i/b M/s. Dhru & Co. for appellant.

Ms. Talon Hauda for respondent No.1.

CORAM: R.M. LODHA &

ANOOP V. MOHTA, JJ.

DATED: 20TH JANUARY, 2006

P.C. :

.

Heard Mr. Karl Shroff, the learned counsel

for the appellant. We perused the impugned order.

2.

The learned counsel for the appellant submits

that due to shifting the office of the Advocate for the

appellant in the year 1989, the Written Statement could

not be filed. He also submitted that even if no Written

Statement was filed, the learned Trial Judge was not

justified in passing the decree mechanically. He relied

: 2 :

upon the judgment of the Supreme Court in the case of

Balraj

Balraj

Balraj Taneja Vs. Sunil Madan AIR 1999, S.C., 3381

Taneja Vs. Sunil Madan AIR 1999, S.C., 3381

Taneja Vs. Sunil Madan AIR 1999, S.C., 3381.

3.

The contentions of the learned counsel for the

appellant do not appeal us. It is not in dispute that

on 23rd August, 1983, the defendants were granted 12

weeks’ time to file their Written Statement. For 21

years and 10 months, no Written Statement was filed and

the matter was posted before the Court on 23rd June,

2005 under the Caption "For want of Written Statement".

On that day, an Affidavit was filed by the Advocate for

the defendant No.1 that due to shifting of the

appellant’s Advocate’s office in the month of May 1989,

the papers of the brief got misplaced. On 22nd June,

2005 it came to the notice of the Advocate for the

defendant No.1 that the matter has been shown on Board

for want of Written Statement. The appellant’s Advocate

immediately tried to locate the papers, but could not

trace the same. We are afraid if the defendant No.1

(appellant herein) could not file the Written Statement

for more than 21 years, he is not entitled to any

further indulgence. As a matter of fact, there is no

explanation whatsoever for not filing the Written

Statement for the period from 1983 until 1988. Even

when the matter was shown on Board for want of Written

Statement, on that day also, the defendant No.1 did not

: 3 :

file any Written Statement nor the Advocate for the

defendant No.1 was ready with the Written Statement. We

find that the defendant No.1 was grossly negligent in

filing the Written Statement and the learned Trial Judge

cannot be said to have committed any error in rejecting

the prayer for adjournment for filing the Written

Statement.

4.

Insofar as the judgment of the Supreme Court

in the case of Balraj Taneja is concerned, we find that

the said case has no application. That was a case where

in a suit for specific performance of the contract, the

defendant did not file Written Statement. The trial

Court decreed the suit on the ground of failure of the

defendant in filing the Written Statement. The Supreme

Court observed that the trial Court ought to have seen

the facts set out in the Plaint and consider if those

facts were treated to have been admitted whether the

judgment could be passed in favour of the plaintiff. It

was observed by the Supreme Court that in a suit for

specific performance of the contract the plaintiff has

to prove that he was ready and willing to perform his

part o