When plaint is returned and presented again, defendant is entitled to file fresh written statement.

Horticultural
Pvt.
Ltd.
v.
Shampiyan
In Vishnu
Viniyard
Ltd.
-
2010(2) Mh.L.J. 244, learned Single Judge of this Court
has held that when plaint is returned and presented again,
defendant is entitled to file fresh written statement.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO. 513 OF 2011
with LPA No. 514 of 2011
Radheshyam Zumbarlal Chandak,
V
RESPONDENTS :- 1. 5th Joint Civil Judge, Jr.Dn.,
Amravati.
2. Medha Prashantrao Pophalkar,

CORAM : B.P.DHARMADHIKARI &
A.B. CHAUDHARI,JJ.
DATED : 27.02.2012


counsel for respective parties.
2.
Requirement
of
registering
civil
suit
for
eviction filed by respondent no.2 as Regular Civil Suit is
not in dispute.
The learned Single Judge has on 7.12.2010
issued necessary directions in this respect in W.P. No.
4873/06
which
was
filed
by
present
respondent
no.2.
After those directions, present appellant sought de novo
trial and amendment in the written statement.
Thereafter
he sought permission to file fresh written statement and
its
rejection
was
questioned
Judge in W.P. No. 2753/11.
before
the
learned
Single
It appears that application
for framing of issues was also moved and its rejection by
the trial Court was questioned in W.P. No. 2714/11.
Both
these writ petitions have been disposed of by the learned
Single
Judge
after
noticing
that
mere
registration
of
civil suit did not enable the petitioner before it to file
fresh written statement.
material
regular
difference
procedure
The contention that there is
between
has
been
Small
found
Causes
to
procedure
be
and
irrelevant.

Judgment
of
this
Court
in
Jawahar
Gendalal

Banode
v.
Somajibhai Karsanji Patel – 1986 Mh.L.J. 480 is also found
not to be relevant.
3.
Shri
appellant/tenant
Gilda
is
has
entitled
contended
to
raise
that
various
the
defences
which are not open before the Small Causes Court and hence
liberty to file fresh written statement ought to have been
He invited our attention to the judgment of this
given.
Court in W.P. No. 4873/06 dated 7.12.2010 to show that
ig
direction was to register the suit and decide the same in
accordance with the provisions of Code of Civil Procedure.
He, therefore, contends that the trial Court ought to have
passed fresh order issuing notice to the present appellant
for filing written statement.
Advocate Chandurkar, on the
other hand, contends that only because the Court in which
suit
came
the
jurisdiction,
become
to
essential
Cause,
filed
registration
circumstances.
Small
be
and
did
as
there
not
possess
regular
is
no
civil
other
pecuniary
suit had
change of
The said suit, as earlier registered as
had
not
proceeded
further
and,
therefore,
there is no question of any material coming on record and
its
being
used
against
the
registered as regular civil suit.
appellant
in
the
suit
He is relying upon the
judgment of learned Single Judge of this Court in C.R.A.
No. 536 of 1982 dated 7.9.1982 and also on the Division
Bench judgment of this Court in the case of Hari Balu
Gaekwad v. Ganpatrao Sakhujirao Gaekwad & ors. reported in
AIR 1914 Bom. 302(1), which has been relied upon by the
learned Single Judge in C.R.A.
3.
After hearing respective counsel, we find that
in C.R.A. No. 536/82 decided on 7.9.1982, question was of

jurisdiction of Small Causes Court and tenant already had
Thus, the written statement contained
necessary defence. The return of plaint was found not
disputed the title. 
necessary and direction to register it as regular civil
suit and its transfer was maintained.
judgment
reported
Sakhujirao
in
Gaekwad,
Hari
Balu
supra,
as
Small
v.
the
Ganpatrao
question
of
when the Judge to whom
Cause
Court
presented
Gaekwad
considers
return of plaint and noticed that
plaint was
The Division Bench
was
itself
competent to determine the question of title, the question
ig
of return of plaint was not involved.
Facts there show
that the suit was filed before Small Causes Court and in
question
of
title
arose.
it
The
Small
Causes
Court
realising the difficulty exercised its power under Section
23
of
Provincial
Small
Cause
Courts
Act,
1887
and
transferred the suit to its file as an ordinary court as a
regular civil suit at a very early stage, i.e. after the
plaintiff had been examined.
The Division Bench found
that powers conferred by Section 23 were put in force in
regular manner; and that the Judge could not have returned
the plaint for presentation to another Judge because he
himself was the Judge having jurisdiction to determine the
question of title, i.e. he himself could have examined the
suit as civil suit.
4.
decided
We
on
have
already
7.12.2010
the
noted,
in
present
W.P.
No.
appellant
4873/06
himself
obtained the order which directed the Small Causes Court
to register the suit as Regular Civil Suit and try it in
regular manner by framing issues in accordance with the
provisions of Code of Civil Procedure.
In view of this
direction given by this Court, the two decisions relied on
by Mr.Chandurkar have no application.

In Jawahar Gendlal Banode v. Somajibhai Karsanji
5.
Patel, supra, in paragraph 8, the procedure to be followed
by Court of Civil Judge while trying regular civil suit
has been considered in similar background.
In said matter
also the matter was required to be transferred to Court of
Senior
Division
jurisdiction.
due
There
to
similar
provisions
of
of
Rule
pecuniary
180
of
Civil
In C.R.A. and Hari Balu
Manual, Vol. I are looked into.
problem
v. Ganpatrao [both supra], the question of present nature
ig
and Rule 180 did not fall for consideration.
Horticultural
Pvt.
Ltd.
v.
Shampiyan
In Vishnu
Viniyard
Ltd.
-
2010(2) Mh.L.J. 244, learned Single Judge of this Court
has held that when plaint is returned and presented again,
defendant is entitled to file fresh written statement.
has
been
held
that
the
only
course
open
in
It
the
circumstances is to transfer the suit.
6. In view of these decisions, it is apparent that
appellant is
entitled
to
fresh written statement.
hearing
learned
counsel
grant
of
opportunity
to
file
In fact, this Court has after
for
the
appellant
on
5.12.2011
while issuing notice granted opportunity to plaintiff to
permit present appellant to file written statement so as
to
resolve
time-loss.
the
controversy
immediately
and
to
curtail
The plaintiff however has chosen to appear and
contest the present appeal.
7.
trial
In
Court
this
dated
situation,
14.2.2011
the
and
suits are quashed and set aside.
orders
6.4.2011
passed
in
by
the
respective
The appellants to file
their respective written statements within a period of two
weeks from today.
The suits filed by present respondent
no.2/landlord are of the year 2006.
Hence, respondent

is
expeditiously
written
directed
within
statements
accordingly allowed.
to
a
attempt
period
are
of
filed.
No costs.
decide
eight
the
months
suit
after
Both
L.P.As.
are

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